WASHINGTON – The U.S. Supreme Court narrowly ruled Tuesday that natural gas pipeline projects which are granted federal approval can utilize eminent domain for state-owned land, bolstering efforts for the planned 116-mile-long PennEast Pipeline through Pennsylvania and New Jersey.
In a 5-4 ruling authored by Chief Justice John Roberts, which cited federal authority within the Natural Gas Act to gain control of lands necessary for the construction and development of national infrastructure projects, the Supreme Court majority disagreed with the State of New Jersey’s argument that it was protected from PennEast pipeline efforts by sovereign immunity.
The ruling also overturned an earlier one from the U.S. Court of Appeals for the Third Circuit, which found in favor of New Jersey and said that the Eleventh Amendment to the U.S. Constitution placed limits on private parties suing states without their consent.
The planned pipeline would carry as much as 1 billion cubic feet of natural gas per day from Luzerne County, Pennsylvania, across the Delaware River to Mercer County, New Jersey.
Though PennEast must still obtain state permits, it applauded the decision as a consumer-friendly one which protects access to “affordable and reliable energy.”
Anthony Cox, Chair of the PennEast Board of Managers, said, “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.”
Meanwhile, Delaware Riverkeeper Network leader Maya van Rossum decried the decision as one which favored business interests over protection of natural resources.
“As we face the existential crisis of climate change, it is devastating that our highest Court has chosen to embolden fossil fuel companies, empowering them to trample over the rights and obligation of our state governments to protect its natural resources for the benefit of its residents, communities and future generations. It is so disturbing that the profit making goals of a private pipeline corporation would be given greater respect and protection than the rights of states and people,” van Rossum said.
“The U.S. Supreme Court should have upheld the Third Circuit ruling and protected the rights of New Jersey to protect state property interests from federal overreach. States’ rights have been under constant assault throughout the Trump administration, and today’s decision to deny sovereign immunity is an enormous setback.”
The ruling presented an unusual divide, as while Chief Justice Roberts authored the majority opinion and was joined by Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor and Brett Kavanaugh – Justices Amy Coney Barrett, Clarence Thomas, Elena Kagan and Neil Gorsuch dissented.
In contrast to the earlier Third Circuit ruling, Roberts said the federal government, through “cohesive national sovereign”, is permitted to utilize its power and eminent domain through a tenet in the Natural Gas Act to obtain land use rights, even if that process involves initiating litigation against a state to do so.
“Over the course of the nation’s history, the federal government and its delegates have exercised the eminent domain power to give effect to that vision, connecting our country through turnpikes, bridges, and railroads – and more recently pipelines, telecommunications infrastructure and electric transmission facilities,” Roberts said.
Once PennEast secured approval for its planned pipeline from the Federal Energy Regulatory Commission three years ago, PennEast sued to obtain over 40 plots of land which are owned or controlled by the State of New Jersey.
Roberts offered that the instant litigation does not threaten states’ autonomy, because “states consented at the founding to the exercise of the federal eminent domain power, whether by public officials or private delegates.”
In her dissent, Barrett said that if the federal government wants to take state-owned land through eminent domain, it cannot delegate such authority to a private party and must take that action itself.
“The Constitution limits the means by which the federal government can impose its will on the states,” Barrett said.
Barrett added that Roberts’ argument “has no textual, structural, or historical support.”
U.S. Supreme Court case 19-1039
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com