Pipelines in Pennsylvania: Eminent Domain and the Municipalitiess Right to Interfere with State Interests

Abstract

It is well established that Pennsylvania is the venue of choice for shale gas development. Natural gas developers focusing heavily on the exploration and development of natural gas shale plays have already drilled thousands of wells into the Marcellus and Utica formations underlying the Commonwealth. With this rapid increase in the volume of natural gas available, developers now need additional infrastructure in order to transport growing reserves to consumers. Many small pipeline projects are underway or completed, but the need for larger volume pipelines continues to grow. In response to this demand, a number of companies propose to construct large volume pipelines. However, these proposals have been met with steady opposition. One pipeline that continues to be met with steady opposition is the PennEast pipeline. The planned PennEast pipeline originates in Luzerne County, located in northeast Pennsylvania, and extends south 108 miles in order to provide natural gas to both Pennsylvania and New Jersey customers. Upon completion, its operators expect the PennEast pipeline to deliver around 1 billion cubic feet of natural gas per day. The greatest opposition to the construction of this pipeline comes from the landowners and municipalities that are located in the 108 mile path the pipeline will take. These stakeholders may seek to block construction of the pipeline through local government action. The success of these objections will likely depend on one main issue: whether local zoning powers preempt the eminent domain proceedings that may be used to force construction of the pipeline. This article examines the factors that will drive this outcome. This paper begins by looking at the process of eminent domain and its intended uses. These eminent domain proceedings are the formal legal process and backstop to be used in overcoming opposition to pipelines if other methods are unsuccessful. Next, it discusses both the statutory requirements and the interests weighed during these proceedings. Third, this paper examines the authority of local governments to zone as they see fit within their townships and municipalities, and the limits applied thereto. Lastly, this paper examines the likely challenges and potential outcomes of issues involving pipeline construction and municipality opposition.