At issue is whether a private utility can use a federal court shortcut to force survey access onto private farms before receiving state regulatory approval.
New Jersey-based PSEG Renewable Transmission wants to build a 67-mile high-voltage electric transmission line across Northern Maryland. But before the state's Public Service Commission decides if the project is even necessary, a federal court granted PSEG a preliminary injunction—allowing surveyors onto private properties.
According to Pacific Legal Foundation (PLF), a preliminary inunction is normally used to "preserve the status quo pending a trial on the merits," not to find a work around an individual's property rights.
Aaron Newell, a property rights attorney at PLF, says the utility jumped the gun on its eminent domain authority.
"The ruling is essentially that, even though PSEG doesn't have their certificate yet, even though they don't have the power to do these surveys, the court has let them in on the prediction that they might have that power in the future," Newell explains.
The court-ordered survey access has disrupted local families, restricting landowners from hunting on their own property and threatening strict biosecurity protocols for farming herds.
After the original ruling, the landowners went to the court of appeals, which only affirmed the district's court decision.
Newell warns the Fourth Circuit's ruling sets a dangerous precedent for property owners across the region.
"The Fourth Circuit's ruling here applies to more than just Maryland... The right to keep people off your land is fundamental. The Supreme Court has called it one of the most treasured property rights that we have," Newell states. "In this case, the federal courts in this ruling essentially provide a rule that allows this survey to happen before the developer has the actual right to be there based on a prediction about what might happen in the future."
The landowners' petition was filed with the Supreme Court on November 4, and a decision on whether to hear the case is anticipated during the current term.
