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Eastern Panhandle pipeline project gets key ruling from appeals court
Eastern Panhandle pipeline project gets key ruling from appeals court

A federal appeals court has issued a key ruling in allowing a project bringing natural gas supplies to the Eastern Panhandle.

A panel with the U.S. Fourth Circuit Court Court of Appeals this month affirmed a lower court ruling to enable Columbia Gas Transmission to exercise eminent domain authority over a small stretch of state-owned property in Maryland.

The panel included federal appeals judges Steven Agee of Virginia, James Andrew Wynn of North Carolina and Stephanie Thacker of West Virginia.

“The Eastern Panhandle Expansion project is critical to supporting economic growth and delivering affordable supplies of clean natural gas to consumers in the Eastern Panhandle of West Virginia. We will work to get this project completed safely and responsibly to help meet the region’s growing energy needs,” stated TC Energy, which operates Columbia Gas Transmission.

The amount of land that was focus of the dispute was just .12 acres. The project — and Maryland opposition — stretch back years. Environmentalists have contended the project could endanger drinking water for communities in Washington County, Maryland, and others all the way to Washington, D.C.

West Virginia developers have contended that access to natural gas is a necessity. Jefferson and Morgan counties have had no natural gas supply, despite seeking it since 1979.

Development in the Eastern Panhandle has been brisk, particularly compared to the rest of West Virginia. The proximity to the Washington, D.C., corridor, highway access through Interstate 81, relatively flat land and natural beauty have made the Panhandle a hotbed of activity.

What’s missing, local developers have said, is the natural gas supply that is prevalent in the rest of West Virginia.

Columbia Gas Transmission, a subsidiary of TransCanada, in 2017 filed an application with the Federal Energy Regulatory Commission to build a new 8-inch pipeline to bring gas 3.4 miles from an existing facility in Fulton County, Pa., through Washington County, Md., to link with the Mountaineer Gas pipeline.

Linking to the Mountaineer Gas line, according to the plan, would then mark the beginning of a three-phase extension of natural gas supply across the Eastern Panhandle.

The Federal Energy Regulatory Commission in 2018 granted Columbia Gas a certificate of public convenience and necessity to authorize the project that came known as the “Eastern Panhandle Expansion Project” or sometimes as the “Potomac Pipeline.”

The project’s path would take it through a tract of land in Washington County, Md., owned by the Maryland Department of Natural Resources. The Maryland Board of Public Works would not approve conveyance of that access. So Columbia Gas filed a complaint in district court in Maryland, seeking to exercise federal eminent domain power.

Both in district court and on appeal, the case hinged on the U.S. Supreme Court’s handling of the similar PennEast Pipeline case involving New Jersey. That 5-4 case concluded that the federal government may confer power of eminent domain to private parties even where state property is involved.

The district judge in the Potomac Pipeline case denied Maryland’s motion to dismiss, guided by the Supreme Court ruling in the PennEast case.

The Potomac Pipeline case the went to appeals court, which reached the same conclusion.

“Maryland is, of course, free to petition the Supreme Court to revisit and even overturn its Eleventh Amendment precedents — indeed, the State appears keen to do just that,” wrote the judges on the appeals panel.

“But unless and until the Supreme Court affirmatively scraps these precedents, we are constrained to apply them, a fact that even Maryland acknowledges.”


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