On April 28, the Supreme Court will hear oral argument in PennEast Pipeline Co., LLC v. New Jersey et al., No. 19-1039, a case with significant implications for pipeline projects.  The main issue is whether the Natural Gas Act (NGA) delegates the federal government’s eminent domain power to Federal Energy Regulatory Commission (FERC) certificate holders and allows them to sue a state to condemn land in which the state claims an interest, or whether the Eleventh Amendment immunizes states from such lawsuits.

Factual and Legal Background

In 2018, following an extensive application and approval process that included public participation and numerous route modifications, FERC granted PennEast a certificate of public convenience and necessity allowing it to construct and operate a nearly 120-mile natural gas pipeline to transport gas in Pennsylvania and New Jersey.

The state of New Jersey has an interest in several properties in the pipeline’s approved route.  Section 717f(h) of the NGA provides that when any holder of a public convenience and necessity certificate cannot obtain by negotiation or contract the necessary rights-of-way to construct, operate, and maintain an interstate pipeline, it “may acquire the same by the exercise of the right of eminent domain” in federal district court.  Under that provision, PennEast brought several in rem actions against New Jersey in district court to establish just compensation and obtain by condemnation the rights-of-way that it had been unable to obtain.

New Jersey moved to dismiss, asserting Eleventh Amendment sovereign immunity from the suit.  The district court rejected New Jersey’s argument and granted the condemnation orders.  However, the Third Circuit disagreed, and vacated the district court’s ruling.  The Third Circuit expressed doubt that the United States can delegate to a private party the federal government’s exemption from Eleventh Amendment immunity that allows it to sue states.  The Third Circuit likened such delegation to an abrogation of sovereign immunity, which Congress can accomplish only through certain federal powers.  Regardless, the court held, the federal government’s eminent domain power and its exemption from state sovereign immunity “are separate and distinct,” and Section 717f(h) delegates only the former, not the latter.

The Third Circuit noted that its “holding may disrupt how the natural gas industry, which has used the NGA to construct interstate pipelines over State-owned land for the past eighty years, operates.” The Third Circuit stated that as “a work-around,” eminent domain actions could be filed by some “accountable federal official.” On January 30, 2020, in response to PennEast’s petition for a declaratory order interpreting the Third Circuit’s decision, FERC issued an order “confirm[ing its] strong belief in” the correctness of PennEast’s position.  FERC also disclaimed the authority to file condemnation actions itself, in place of natural gas companies.

On February 3, 2021, the Supreme Court granted PennEast’s petition for a writ of certiorari.  In addition, the Court instructed the parties to brief and argue a second issue—whether the Third Circuit properly exercised jurisdiction over the case.

Eleventh Amendment Arguments

New Jersey argues that the federal government cannot delegate its exemption from state sovereign immunity to allow private parties to bring condemnation suits against states, but even if it could, Congress did not clearly do so through the text of the NGA.  Thus, New Jersey asserts that the Court “need not conclusively resolve the constitutional question” because the text of the NGA disposes of the issue presented.

By contrast, PennEast asserts that the NGA’s delegation of the federal government’s eminent domain power necessarily includes the ability to sue states.  Concluding otherwise, PennEast argues, would overlook the history of eminent domain proceedings and the fact that Section 717f(h) includes no exception for state-owned properties.  It would also frustrate the NGA’s fundamental purpose of facilitating interstate pipelines.  PennEast also emphasizes that the condemnation actions are in rem proceedings that do not implicate the same state sovereign immunity concerns that in personam suits implicate.  Finally, PennEast argues that the Third Circuit’s decision “not only gives states a veto power over federally approved pipelines but creates gravely misaligned incentives, as a private property owner seeking to preclude construction of a pipeline could do so by granting an easement to a state that shares its opposition.”

A coalition of 19 states—including some facing potential suits regarding pipeline projects—filed an amicus brief in support of New Jersey, primarily based on “the constitutional questions that undergird [New Jersey’s] statutory analysis.”  PennEast’s argument on the merits is supported by numerous industry amici and the federal government.  Those industry amici argue that the Third Circuit’s decision will have significant negative impacts on the industry’s ability to reliably supply the country with affordable natural gas.  Similarly, the federal government has emphasized that an affordable and reliable interstate natural gas supply is a general purpose of the NGA, which the Third Circuit’s decision threatens.

Other Jurisdictional Arguments

In June 2020, the Supreme Court invited the Solicitor General to file a brief expressing the United States’ views on the certiorari petition.  The United States subsequently filed a brief characterizing the case as a “collateral attack on [PennEast’s] authority to execute the terms of the FERC-issued certificate.”  It, therefore, argued that the lower courts lacked jurisdiction to entertain the case because Section 717r(b) of the NGA vests exclusive jurisdiction for direct review of the certificate in the D.C. Circuit or the circuit in which the certificate-holder has its principal place of business.

PennEast and New Jersey both argue that the lower courts properly exercised jurisdiction; neither party understands New Jersey’s Eleventh Amendment challenge as a collateral attack on the FERC certificate.

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The Supreme Court is expected to return a decision before the term ends in late June.