Supreme Court Decision Could Revive the Potomac Pipeline Project

A Supreme Court decision on Tuesday could speed construction of a controversial pipeline proposed to run through a narrow stretch of Maryland near Hancock and under the Potomac River to deliver gas to West Virginia's panhandle. Photo by Famartin via Wikimedia Commons.

The U.S. Supreme Court sided with a pipeline company on Tuesday, ruling that pipeline projects with federal approval can seize state-owned land to build natural gas pipelines. 

Environmentalists say this decision could speed construction of a controversial pipeline proposed to run through a narrow stretch of Maryland near Hancock and under the Potomac River to deliver gas to West Virginia’s panhandle.

The matter has been under litigation for the past two years after Maryland refused to grant the pipeline company access. 

In a 5-4 decision, the Supreme Court ruled that PennEast Pipeline Co. can take land from New Jersey to build a 116-mile natural-gas pipeline through Pennsylvania and New Jersey. The decision in PennEast v. New Jersey is binding and has bearing on a similar lawsuit filed by a pipeline company against the state of Maryland, according to Anne Havemann, general counsel for Chesapeake Climate Action Network. 

“Today’s ruling goes against a long history of preserving a state’s authority to protect natural resources within its borders from harmful interstate projects, and should be a wake up call to state leaders to find new ways to protect their interests,” Phillip Musegaas, vice president of the Potomac Riverkeeper Network, said in a statement. 

“In the Potomac pipeline case, an unwanted fracked gas pipeline — that would result in increased emission of harmful greenhouse gases and risk the safety of drinking water for six million downstream residents and the health of the Potomac River — could be built despite strong objection from Maryland’s governor and Maryland residents,” he continued.

At issue is a lawsuit that Columbia Gas Transmission filed against the state of Maryland in 2019, after the Board of Public Works voted unanimously not to grant an easement for the company’s “Eastern Panhandle Expansion Project,” a 3.5 mile pipeline that would transport natural gas from Pennsylvania to West Virginia by crossing through Washington County. 

The pipeline project needed an easement to drill beneath the Western Maryland Rail Trail, which is state-owned land. 

The company, which is a part of TC Energy and based in Canada, has already built sections of the pipeline in Pennsylvania and West Virginia and needs the right to cross through Maryland to complete the project. When asked about the recent Supreme Court decision and how it would affect the Columbia Gas Transmission’s lawsuit, a spokesperson from TC Energy said, “we cannot comment on ongoing litigation.”

Specifically, the company sought a preliminary injunction to get access to state land after the BPW vote, arguing that it should have been granted the easement after receiving the necessary waterway permits from the state and a “certificate of public convenience and necessity” from the Federal Energy Regulatory Commission (FERC). 

In the suit, Columbia Gas Transmission argues that a 1938 law called the Natural Gas Act grants private companies with a certificate from FERC the federal government’s power of eminent domain to seize land to build pipelines.

Eminent domain is a power that allows the government to take property in return for just compensation for projects deemed beneficial to the public. 

Private companies usually exercise eminent domain over private citizens to build pipelines across the country, Havemann said.

The cases involving PennEast Pipeline Co. and Columbia Gas Transmission are unprecedented in that they are trying to claim federal power of eminent domain over states that do not want to grant them access to state land, she said. 

In August 2019, the U.S. District Court for Maryland dismissed the lawsuit, arguing that the state has sovereign immunity under the U.S. Constitution, which provides that states cannot be sued in state or federal courts without their consent. 

In September 2019, the pipeline company filed an appeal in the United States Court of Appeals for the Fourth Circuit, and it has been sitting there since, awaiting a decision on PennEast v. New Jersey, according to Havemann. 

What does this mean for the Potomac pipeline? 

For years, environmentalists waged a lengthy campaign against the Potomac Pipeline for the risks it posed to the river. Drilling fluid from pipeline construction could threaten drinking water supplies for communities in Washington County and others all the way to Washington, D.C, Musegaas said. 

In addition, the Potomac Pipeline is meant to serve communities in West Virginia and would offer no economic benefit to Maryland, Musegaas continued. 

“The state should have authority to protect natural resources and public land within its borders and preserve them for future generations,” he said. 

Also at issue is the impact on the climate from building more natural gas infrastructure. 

“America needs to get serious about tackling climate change and that means limiting fossil fuels,” Havemann said. “No more investments in fossil fuels and dirty energy — we need to pump all our investments into clean energy at the federal and state level.” 

There are many states committed to greenhouse gas reductions that oppose building new natural gas infrastructure, but there are very few tools that states have to stop gas expansion once pipeline projects get approval from FERC, Havemann said. 

The decision on PennEast v. New Jersey gives pipeline companies clear leverage in seizing land from states across the country to build pipelines, even if the states do not consent. A victory in the other direction could have given states an extra tool to stop gas expansion, Havemann said. 

It is not clear whether this Supreme Court decision immediately grants Columbia Gas Transmission the right to take land from Maryland to build the Potomac pipeline, but a ruling in favor of the PennEast Pipeline Co. means it is likely that the Potomac pipeline will get built, Havemann said. 

There is a question as to whether Columba Gas Transmission’s FERC approval is still valid, given the two-year delay, as well as whether gas that the Potomac pipeline will provide is still a necessity in West Virginia, Musegaas said. 

Columbia Gas Transmission also still needs to get a permit from the National Park Service to cross the Chesapeake & Ohio Canal National Historical Park, according to the Sierra Club. 

The U.S. Supreme Court decision comes on the heels of the Keystone XL oil pipeline’s termination earlier this month. That pipeline proposed by TC Energy would have carried crude oil from Canada to Nebraska.

In January, President Biden revoked a key cross-border presidential permit needed to finish the project, which environmentalists have opposed for almost a decade. 

According to the U.S. Energy Information Administration, Canada was the largest exporter of petroleum and crude oil products to the United States. 

Last year, Dominion Energy Inc. and Duke Energy Corp. suddenly abandoned the Atlantic Coast Pipeline, which would have transported natural gas across the Appalachian Trail, after lawsuits blocking the project increased the cost from an estimate of $4.5 to $5 billion to more than $8 billion. 

“Everywhere you look, people are fighting back,” Havemann said. 

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Editor’s Note: This story was updated to include a comment from TC Energy.