By Lisa Soronen
In PennEast Pipeline v. New Jersey the U.S. Supreme Court held 5-4 that the federal government may constitutionally grant pipeline companies the authority to condemn necessary rights-of-way in which a state has an interest. Pipeline companies likewise may sue states to obtain the rights-of-way.
The State and Local Legal Center (SLLC) filed an amicus brief asking for the Court to reach the opposite conclusion. NCSL did not join the brief.
Per the Natural Gas Act (NGA) natural gas companies, upon a showing of “public convenience and necessity,” may receive a certificate from the Federal Energy Regulatory Commission allowing them to use federal eminent domain power to obtain land to locate a pipeline.
After receiving such a certificate, PennEast filed a complaint to condemn land in which New Jersey has an interest. New Jersey claimed sovereign immunity prevented PennEast from being able to sue the state in federal court.
In an opinion written by Chief Justice John Roberts, the Supreme Court held that the NGA follows precedent allowing private parties to exercise federal eminent domain over state land and that sovereign immunity doesn’t bar the lawsuit in this case.
Regarding the NGA following precedent, the court cited to Oklahoma ex rel. Phillips v. Guy F. Atkinson Co. (1941), holding that federal eminent domain applies to state land. Likewise, in Cherokee Nation v. Southern Kansas Railroad Co. (1890), the court stated that a private party could exercise federal eminent domain over state land.
Eleventh Amendment sovereign immunity prohibits states from being sued with some exceptions. According to dissenting Justice Amy Coney Barrett, joined by Justices Clarence Thomas, Elise Kagan, and Neil Gorsuch, no exception applies in this case so PennEast couldn’t sue New Jersey. To these justices, the NGA is just another “exercise of Congress’ power to regulate interstate commerce,” and “Congress cannot authorize private suits against a nonconsenting State pursuant to its Commerce Clause power.”
A majority of the justices disagreed, citing to the “plan of the [Constitutional] Convention” exception. According to the court, “a state may be sued if it has agreed to suit in the ‘plan of the Convention,’ which is shorthand for ‘the structure of the original Constitution itself.’” The court opined that the cases discussed above show the states “consented in the plan of the Convention to the exercise of federal eminent domain power, including in condemnation proceedings brought by private delegates.”
The SLLC amicus brief favored sovereign immunity in this case arguing, among other things, that the NGA contains no “clear statement” of Congressional intent to delegate its power to sue states to private parties. But, according to the court, the correct issue is whether the United States can delegate its eminent domain power to private parties. “Regardless whether the federal government must speak with unmistakable clarity when delegating its freestanding exemption from state sovereign immunity (assuming such a delegation is even permissible), there is no similar requirement when the federal government authorizes a private party to exercise its eminent domain power.”
Jennifer Selendy, Erica Iverson, Vivek Tata, and Adam Hersh of Selendy & Gay wrote the SLLC amicus brief which the following organizations joined: Council of State Governments, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.