The U.S. Supreme Court today (June 29), in a 5-4 vote, upheld the authority of the federal government over that of the states in an eminent domain case involving the state of New Jersey and environmental groups. The decision in the PennEast Pipeline Co. v. New Jersey saw a split in the court, with conservative Republican justices and liberals on both sides of upholding the Federal Energy Regulatory Commission’s authority over states in certifying pipelines to use eminent domain under the Natural Gas Act.
FERC in 2018 approved a certificate for the 120-mile pipeline to move gas from Pennsylvania’s Marcellus Shale wells across the state from Luzerne County to a Transco pipeline in Mercer County, N.J. When the federal agency approved the use of eminent domain, the state, backed by local environmental groups, balked, suing FERC to try to stop the project. The state claimed that it had “sovereign immunity,” which overrode the federal powers.
A federal district court agreed with the state, but the Third Circuit Court of Appeals disagreed, and the Supreme Court upheld the appeals court.
Chief Justice John Roberts, joined by conservatives Samuel Alito and Brett Kavanaugh and liberals Stephen Breyer and Sonia Sotomayor, wrote the opinion for court. He said, “Specifically, we are asked to decide whether the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. We hold that it can. Although nonconsenting States are generally immune from suit, they surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution. That power carries with it the ability to condemn property in court. Because the Natural Gas Act delegates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, including against state-owned property.”
A dissent by conservative Amy Coney Barrett, the newest member of the high court, wrote a dissent joined by Clarence Thomas, Elena Kagan, and Neil Gorsuch. She wrote, “A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and we have repeatedly held that the Commerce Clause does not permit Congress to strip the States of their sovereign immunity. Recognizing that barrier, the Court insists that eminent domain is a special case. New Jersey has no sovereign immunity to assert, it says, because the States surrendered to private condemnation suits in the plan of the Convention. This argument has no textual, structural, or historical support. Because there is no reason to treat private condemnation suits differently from any other cause of action created pursuant to the Commerce Clause, I respectfully dissent.”
Liberal constitutional law scholar and retired Harvard law professor Laurence Tribe, on Twitter commented, “Justice Barrett strikes again. And I don’t mean strikes out. She hits it out of the park, joined in dissent by Kagan, Thomas, and Gorsuch. VERY impressive.”
PennEast issued a statement: “We are pleased that the Supreme Court kept intact more than seven decades of legal precedent for the families and businesses who benefit from more affordable, reliable energy. This decision is about more than just the PennEast project; it protects consumers who rely on infrastructure projects – found to be in the public benefit after thorough scientific and environmental reviews – from being denied access to much-needed energy by narrow State political interests. PennEast understood that New Jersey brought this case for political purposes, but energy crises in recent years in California, Texas, and New England, have clearly demonstrated why interstate natural gas infrastructure is so vital for our way of life, public safety, and enabling clean energy goals.”
Jeff Tittle, former director of the New Jersey Sierra Club, commented, “We have lost today’s battle, but the fight continues,” saying he will push from New Jersey’s Democratic Gov. Phil Murphy, who brought the suit, and state environmental regulators to use the state’s permitting process to stop the project.
–Kennedy Maize