U.S. Supreme Court Rules in Favor of PennEast Pipeline’s Use of Eminent Domain
| June 30, 2021
The U.S. Supreme Court on Tuesday ruled that a company behind a proposed Pennsylvania-to-New Jersey natural gas pipeline has the authority to use eminent domain to acquire lands controlled by New Jersey for the project.
The justices ruled 5-4 that the PennEast Pipeline can initiate condemnation proceedings against the state for the 116-mile project, which would send Marcellus shale natural gas from Luzerne County in Pennsylvania to Mercer County in New Jersey.
The high court’s ruling, while a significant hurdle cleared, is far from the last.
The planned pipeline, which has been in the works for at least six years, continues to make its way through layers of regulatory reviews and remains steadfastly opposed by environmental groups and others.
Nonetheless, the company in a statement hailed the court’s ruling on Tuesday.
Anthony Cox, chairman of the PennEast board of managers, said New Jersey had brought the case for political purposes.
“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,” he said.
At issue before the Supreme Court was whether the federal government through the Federal Energy Regulatory Commission could constitutionally confer on pipeline companies the authority to condemn rights-of-way on properties in which a state claimed an interest.
Specifically, a provision made to the Natural Gas Act in 1947 authorized companies that had gained FERC’s approval to condemn all necessary rights-of-way, whether owned by private parties or states, said the majority opinion, which was written by Chief Justice John Roberts.
It is undisputed that the provision was passed “specifically to solve the problem of states impeding interstate pipeline development by withholding access to their own eminent domain procedures,” Roberts wrote. “And it was understood both at the time the provision was enacted and over the following decades that states’ property interests would be subject to condemnation.”
The opinion offered a history lesson about the use of eminent domain and the nation’s system of pipelines.
“For as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties,” Roberts wrote. “It was commonplace before and after the founding for the colonies and then the states to authorize the private condemnation of land for a variety of public works.”
The ruling noted that the federal government, though its delegates, has “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 was joined by conservative justices Samuel Alito and Brett Kavanaugh, and liberal justices Stephen Breyer and Sonia Sotomayor.
PennEast sought to condemn two parcels over which New Jersey asserted possession and 40 parcels in which the state had other claims, such as conservation easements.
New Jersey and others argued that the states’ sovereign immunity prevented the condemnation proceedings.
Further, they argued, even if such proceedings were constitutionally permitted, the language in the 1947 provision to the Natural Gas Act was not clear enough to allow such actions.
Maya van Rossum, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network, which has been a leading opponent of the pipeline, said in a statement that it was “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.”
She said the network has multiple challenges pending in federal court and that the project still requires the approvals of New Jersey and Pennsylvania regulators, the U.S. Army Corps of Engineers and the Delaware River Basin Commission.
The company’s initial application before the commission was withdrawn on Jan. 30, 2020, after it filed an amended version with FERC.
The new approach splits the project into two phases, with a plan to work on the Pennsylvania side first. The latest version does not yet include a crossing of the Delaware River as part of its plan.