WASHINGTON — The Supreme Court cleared the way on Tuesday for a pipeline to transport natural gas from Pennsylvania to New Jersey, ruling that PennEast Pipeline Company, the project’s developer, may exercise the federal government’s power of eminent domain to condemn land owned by New Jersey.
The vote was 5 to 4. Chief Justice John G. Roberts Jr., writing for the majority, said the government was entitled to delegate its power of eminent domain to private parties even where state property is at issue.
“We are asked to decide whether the federal government can constitutionally confer on pipeline companies the authority to condemn necessary rights of way in which a state has an interest,” Chief Justice Roberts wrote. “We hold that it can.”
Justices Stephen G. Breyer, Samuel A. Alito Jr., Sonia Sotomayor and Brett M. Kavanaugh joined the chief justice’s majority opinion.
Under the Natural Gas Act, a federal law, the federal government can authorize private companies to use its eminent domain power in at least some circumstances. PennEast obtained federal approval for its proposed 116-mile pipeline, to run from Luzerne County in Pennsylvania to Mercer County in New Jersey, and federal officials gave it the power to condemn property along the route.
New Jersey, which has ownership interest in many of the parcels of land the company sought to condemn, objected, saying that the doctrine of sovereign immunity, which generally forbids private parties from suing states in federal court, banned the company’s efforts.
A unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, agreed with New Jersey’s position, ruling that the federal law did not authorize private parties to take state property.
There is, Judge Kent A. Jordan wrote for the panel, “deep doubt that the United States can delegate its exemption from state sovereign immunity to private parties.” But he said there was no need to resolve the question, as the Natural Gas Act had not delegated such a power to private companies.
“If Congress had intended to delegate the federal government’s exemption from sovereign immunity,” he wrote, “it would certainly have spoken much more clearly.”
In the Supreme Court, PennEast argued that the Third Circuit’s decision would, if affirmed, have broad consequences.
“The decision below not only is wrong but poses an obvious threat to pipeline development,” the company’s lawyers wrote. “It provides a road map for converting state lands — including the beds of rivers forming state boundaries — into barriers to pipeline development.”
Chief Justice Roberts wrote that there was a long history of eminent domain actions against state property rooted in federal power.
“Over the course of the nation’s history, the federal government and its delegatees 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,” he wrote. “And we have repeatedly upheld these exercises of the federal eminent domain power — whether by the government or a private corporation, whether through an upfront taking or a direct condemnation proceeding, and whether against private property or state-owned land.”
In dissent, Justice Amy Coney Barrett responded that Congress was powerless to allow private suits against states under its constitutional authority to regulate interstate commerce.
“Congress cannot enable a private party like PennEast to institute a condemnation action against a nonconsenting state like New Jersey,” she wrote.
Justices Clarence Thomas, Elena Kagan and Neil M. Gorsuch joined Justice Barrett’s dissent in the case, PennEast Pipeline Company v. New Jersey, No. 19-1039.
Justice Barrett said the federal government had other ways to achieve its goals. “In fact,” she wrote, “there is an obvious option that the court barely acknowledges: The United States can take state land itself.”
“The eminent domain power belongs to the United States, not to PennEast,” she wrote, “and the United States is free to take New Jersey’s property.”
Anthony Cox, the chairman of PennEast’s board of managers, welcomed the court’s ruling.
“This decision is about more than just the PennEast project,” he said in a statement. “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.”
Gurbir S. Grewal, New Jersey’s attorney general, said he was disappointed but would continue to oppose the project.
“Our fight is far from over,” he wrote on Twitter. “I’m proud to continue standing up for our residents and championing environmental protection. I urge the feds to take another look at this harmful proposal.”