Carla Kelly-Mackey has been fighting to keep a pipeline off of her farm for years.
Now, the private company is looking to use eminent domain, a right usually reserved for the government, to get at the land.
Kelley-Mackey lives with her husband, Dan Mackey, on a 137-acre hay farm in Delaware Township.
In 2014, the couple was informed that their property was along the route for PennEast pipeline; a proposed 120-mile long natural gas pipeline that will run from the Marcellus Shale region of Pennsylvania to Mercer County.
The pipeline, estimated to cost $1 billion, would cut diagonally across Kelly-Mackey's property for more than a mile, underneath the hay fields and passing just 63 feet from the house.
"We're hay farmers," Kelly-Mackey said. "Why they would need to put a pipeline right on top of our house like that is a mystery to me."
The pipeline construction would be the farm's undoing, she said, because it would damage the soil. She added that the heat produced by the pipeline underground would harm the plants growing above.
"I think PennEast thinks you just sprinkle a little grass seed back on the ground and there you go, you've got new hay," Kelly-Mackey said. "But it doesn't work like that."
"As soon as we received their letter telling us that they wanted to put their pipeline on our farm, I immediately wrote them back a letter informing them that they were not welcome to set foot on our property and if they did we would be charging them with trespassing," Kelly-Mackey said. "So all the interactions have been them leaving messages on our answering machine."
They're not alone; opposition to the pipeline has been widespread along the New Jersey portion of the route.
In an effort to overcome the homeowers' resistance, PennEast is turning to eminent domain to force its way onto land it doesn't own.
Eminent domain is generally used by local, state and federal agencies to seize private land for projects that serve the public good.
But PennEast, a private, for-profit natural gas companies can use eminent domain thanks to the federal Natural Gas Act, a 1938 law that was originally created to establish America's natural gas infrastructure and ensure a steady supply of energy throughout the nation. As long as PennEast can prove that the pipeline serves a public need and the project gets federal approval, the pipeline company can use eminent domain.
Approval troubles
On January 19, PennEast received approval from the Federal Energy Regulatory Commission. The pipeline has also been approved by Pennsylvania.
The last remaining hurdles for approval are from New Jersey and the Delaware River Basin Commission.
In order to get FERC approval, PennEast argued that the new pipeline was needed to ensure that New Jersey utilities could meet the Garden State's natural gas demands. Opponents argue that the state already has enough natural gas and that PennEast is just a way for the pipelines stakeholders, which include New Jersey Resources and South Jersey Industries, to save money and boost profits.
Trying to get New Jersey's approval, however, has been a roller coaster for PennEast. Last June, the DEP told PennEast that their application was administratively closed because they had not provided all the necessary information.
On Feb. 1, the DEP sent a letter to PennEast as a reminder that the application was still denied and that a new one would have to be submitted with more information.
And therein, lies the problem for PennEast.
The company needs to do more survey work along the proposed route to assess the environmental impact. But the pipeline company has been thwarted in that effort by landowners who will not allow surveyors onto their land.
"It's very simple: If you oppose a project like this, one way to stop it is to deny survey access," said Mike Spille, a West Amwell resident whose property abuts the proposed pipeline route. Spille is the founder of West Amwell Citizens Against The Pipeline.
Enter eminent domain.
PennEast is filing eminent domain lawsuits against the unwilling owners, claiming that receiving federal approval gives them the right to access and survey the land. PennEast sent final offers to landowners on Jan. 20, just a day after getting federal approval, and set a Feb. 5 deadline.
"Unfortunately, organized and unaccountable opposition groups have their own political agenda and use landowners' withholding survey access to advance that agenda -- to the detriment of the landowners," said Patricia Kornick, a spokeswoman for PennEast, in a statement. "While PennEast views legal proceedings as emotional, burdensome and costly for all involved, it exercised that last-resort option Feb. 6."
Resistance in the Garden State
According to PennEast, 75 percent of landowners along the proposed route have agreed to provide access for survey crews. But that number incluces New Jersey with Pennsylvania, and the difference in attitude toward the pipeline is staggeringly different in the two states.
According a list compiled by Spille, 50 eminent domain cases have been filed by PennEast in Pennsylvania, which has two-thirds of the proposed route. In New Jersey, which has the final third of the pipeline route, PennEast has filed 147 cases. Those New Jersey claims are spread across six municipalities: Alexandria Township, Delaware Township, Holland Township, Kingwood Township, West Amwell and Hopewell Township.
"The majority of people are against it," Spille said of attitudes towards the pipeline in New Jersey. "There's pockets of people who are for it for whatever reason, whether for personal gain or they believe that this is for the greater good for whatever reason, but they are definitely in the minority by a big shot.
It's not just private homeowners who are refusing to allow PennEast access. Nonprofit organizations like the New Jersey Conservation Foundation, municipalities along the route, and Hunterdon and Mercer counties have all had eminent domain claims filed against them.
"It's one thing when eminent domain is used for a legitimate public purpose," said Tom Gilbert, a campaign director for the New Jersey Conservation Foundation. "It's another thing when it's for a project that there's very significant evidence and criticism that there's no public purpose."
Even the state itself is facing an eminent domain claim from PennEast after it refused to accept a deal with the pipeline. On Feb. 2, New Jersey Attorney General Gurbir Grewal sent a letter to PennEast rejecting the offer.
"The State cannot accept PennEast's offers and sign the Right-of-Way because the [FERC] Certificate of Public Convenience and Necessity is still subject to legal challenge and PennEast has not provided sufficient information regarding the bases for the offers and the terms contained in the proposed Right-of-Way, some of which are ambiguous or contrary to law," Grewal wrote in the letter.
Challenging federal approval
On Friday, the DEP filed a request for rehearing with FERC. If granted, the pipeline's federal approval would be stayed and eminent domain claims would be put on hold.
Requests for rehearing have also been filed by the New Jersey Conservation Foundation, the Stony Brook-Millstone Watershed Association and the New Jersey Sierra Club. Even some individual landowners, like Spille, have filed challenges to the FERC approval.
The PennEast eminent domain cases are expected to be in court for months, and the first batch of hearings is scheduled for April 5 in U.S. District Court.
Despite that, and despite the questions surrounding permits from New Jersey and the DRBC, PennEast said it expects construction to begin later this year.
Read the DEP's request for rehearing:
Michael Sol Warren may be reached at mwarren@njadvancemedia.com. Follow him on Twitter @MSolDub.