President Joe Biden’s administration is supporting the $1 billion PennEast natural gas pipeline in its case before the Supreme Court of the United States.
PennEast Pipeline Company proposed building a 120 mile pipeline originating in Pennsylvania to move natural gas from the Marcellus Shale region in Pennsylvania to existing facilities in New Jersey.
The Federal Energy Regulatory Commission approved the PennEast pipeline’s route and granted the company the power to exercise eminent domain to condemn property to construct it, when sellers along its route rejected the company’s fair offers.
Under revisions of the 1938 Natural Gas Act, Congress concluded “the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest,” and allows the use of eminent domain when necessary to construct pipelines deemed in the public interest. FERC found PennEast was in the public interest and delegated to PennEast the power to exercise eminent domain if necessary to obtain land to complete the pipeline.
The state of New Jersey had obtained interests in some of the land along the pipeline’s route, and sued to block FERC’s action delegating to PennEast the right to exercise eminent domain on that land. New Jersey argued its land was exempt from NGA authority under the doctrine of sovereign immunity.
Circuit Court Denied FERC Authority
Consumer groups, multiple oil and gas industry trade groups, unions, and state and national chambers of commerce and manufacturers associations filed briefs in support of the PennEast pipeline and FERC’s authority to grant the company eminent domain power over even state property.
FERC argued the power to regulate interstate commerce was specifically delegated to Congress in the U.S. Constitution and that the long-established doctrine of federal supremacy meant even state land may be condemned for public projects approved by the federal government.
In the case, PennEast Pipeline Co. v. New Jersey, in 2019, the U.S. Court of Appeals for the Third Circuit ruled PennEast could not use eminent domain to seize land owned by New Jersey for pipeline construction. The court further ruled FERC did not have the authority to grant PennEast eminent domain power to take New Jersey state lands because such a condemnation would interfere with the state’s sovereign immunity.
Feds Joined Appeal
PennEast petitioned the U.S. Supreme Court to hear its appeal of the circuit court’s decision.
The U.S. Justice Department, then under President Donald Trump, joined PennEast’s appeal. New Jersey Attorney General Gurbir Grewal had requested the Supreme Court refuse to hear PennEast’s appeal.
The Justice Department argued provisions in the National Gas Act authorize the construction of the pipeline. In addition, the Justice Department argued the federal authority under the U.S. Constitution and the National Gas Act authorize pipeline companies to condemn property, including state-owned property or property a state has an interest in, if FERC determines it to be necessary for the construction of an interstate pipeline.
On March 8, the Biden administration’s Justice Department offered its own brief echoing the previous Trump administration’s arguments.
“The right of eminent domain was well-known at the Founding. As the Court has long recognized, the Constitution conferred that authority on the federal government, including the authority to take State-owned land, for projects within the government’s enumerated powers,” wrote Acting Solicitor General Elizabeth B. Prelogar in the Justice Department’s brief. “In light of the long unbroken history of colonial, state, and federal delegations of such authority, there is no basis to conclude that, when the States granted the federal government the eminent-domain power in the plan of the Convention, they silently retained the right to veto delegations of its exercise, as long as they could first obtain any property interest in the land at issue.
“And since before the Founding through the present day, the right of eminent domain has been understood to encompass authority for private parties to exercise the right for projects the sovereign deems in the public interest,” wrote Prelogar.
Bipartisan Support for PennEast
The fact that both the Trump administration and the Biden administration asked the Supreme Court to hear PennEast’s appeal shows support for this particular pipeline is bipartisan, said Patricia Kornick, a spokesperson for PennEast.
“PennEast appreciates the continued support of the United States, which underscores this case presents an issue that cuts across party lines,” said Kornick in an email released to the media. “As the United States’ brief cogently explains, Congress’ language in the Natural Gas Act very clearly authorizes a private party to obtain all land necessary to construct a project that has been determined to be in the public need and safe for the environment.
“FERC was very thorough in its multi-year review, a review in which New Jersey participated, when deciding to grant a Certificate of Public Convenience and Necessity for the PennEast Pipeline Project,” Kornick said.
The Supreme Court accepted the case and has scheduled arguments for April.
H. Sterling Burnett, Ph.D. (hsburnett@heartland.org) is the managing editor of Environment & Climate News.
