Yesterday, we accompanied Susquehanna County, PA landowners to the hearing on “quick take” eminent domain condemnation Constitution Pipeline is seeking against them. The pipeline company is a joint partnership led by Williams Partners LLC, also owner of the proposed Atlantic Sunrise Pipeline in Pennsylvania. Partners in the project include Cabot Oil & Gas and Washington Gas & Light.
Constitution Pipeline via their law firm Saul Ewing is asking Judge Malachy Mannion, of the 3rd Circuit Federal Court of Appeals, for “quick take” power to condemn seven properties where landowners have refused an easement agreement for the 100-foot wide pipeline right of way. The Fifth Amendment of the US Constitution requires that “just compensation” be given for any private property seized by eminent domain. If Constitution Pipeline is successful, eminent domain condemnation would occur before the amount of “just compensation” is determined by the court, as hearings on that have not yet occurred.
There was no ruling on the preliminary injunction yesterday, which means that Constitution cannot access those properties on February 16th (Monday) like they were seeking to do. Judge Mannion extended the time for written briefs and arguments to February 24th, after which he will make a ruling.
The attorney for the landowners made a very good argument that the Fifth Amendment would be violated with “quick take”.
In one case, before the 7th Circuit Court of Appeals, this was held to be true (NORTHERN BORDER PIPELINE COMPANY, Plaintiff-Appellant, v. 86.72 ACRES OF LAND, et al., No. 98-1167. – See more). Unfortunately, Judge Mannion is not bound by the 7th Circuit’s decision, only by other 3rd Circuit and US Supreme Court decisions.
The irrelevant 3rd Circuit case cited by Constitution Pipeline’s attorneys is a recent decision by Judge Marjorie Rendell (ex-governor Ed Rendell’s wife) where Columbia Pipeline sought and was granted “quick take” power for four properties they needed to replace an existing, aging pipeline (COLUMBIA GAS TRANSMISSION, LLC, Appellant v. 1.01 ACRES, MORE OR LESS IN PENN TOWNSHIP, YORK COUNTY, PENNSYLVANIA No. 13-4458 – See More).
However, the Constitution Pipeline is a new, or “greenfield”, project and the Columbia Pipeline ruling should not be considered relevant for Judge Mannion.
Other highlights of the day, Elizabeth Witmer from Saul Ewing, the bully lawyer who sent out the intimidating letters to landowners telling them they had to sign easement agreements, was there with a team of attorneys. They wheeled two hand trucks of documents in file boxes into the courtroom and spent the morning shuffling papers around in what could have easily been a Monty Python skit.
They had Matt Swift, the project manager, and Patrick McClusky, the head of land acquisition, testify about the properties. During Swift’s testimony, Constitution methodically pulled up the maps of the properties to enter them in as evidence. Swift stated that in order for Constitution to meet the in-service date of December 2, 2016, they would need to have stream crossings (both wet and dry) completed in June 2015. He stated that pre-construction surveys and tree clearing would need to commence this month in order for that to happen.
Judge Mannion questioned Swift about the ability for Constitution to apply for an extension of the in-service date and Swift admitted that FERC may grant an extension if asked. Judge Mannion seemed like he did not feel compelled by Constitution’s arguments for urgency.