Tom Galvin, attorney at Rose Law Group, on ‘fascinating’ eminent domain case before U.S. Supreme Court

By Ilya Somin | Reason

A number of people have asked me what I think about PennEast Pipeline Co. v. New Jersey, an important eminent domain case that was considered by the Supreme Court earlier this week. Normally, when an issue involving eminent domain reaches the Supreme Court, I’m all over it, writing analyses and often filing an amicus brief. Because current jurisprudence severely under-protects constitutional property rights in a variety of ways, in the vast majority of these cases I end up supporting the property owner against the government.

PennEast is different because the case is only superficially about property rights; the real focus is on the scope of state sovereign immunity from being sued by private parties in federal court. Both sides’ positions rest on highly problematic foundations. So much so that my reaction to the case is similar to Henry Kissinger’s take on the Iran-Iraq War: “It’s a pity they can’t both lose.”

The case arose because the federal government used its powers under the Natural Gas Act to delegate to the PennEast Pipeline Company the power to use eminent domain to condemn property it claims to need to build a pipeline through Pennsylvania and New Jersey. Some of the land PennEast wants to condemn is owned by the state of New Jersey (which opposes the construction of the pipeline).

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“The two questions before the US Supreme Court are whether the Natural Gas Act (NGA) delegates to the Federal Energy Regulatory Commission certificate-holders, like PennEast, the ability to exercise the federal government’s eminent-domain power to condemn land in which the State of New Jersey claims an interest, according to the 11th Amendment of the Constitution, and whether the U.S. Court of Appeals for the 3rd Circuit properly has jurisdiction over the case.”

“The Justices have seemed especially interested in the interaction between the NGA and the 11th Amendment. Some of the justices seemed skeptical of New Jersey’s claim of ‘sovereign immunity’ in this case. If New Jersey prevails it could possibly be that states will have a veto power over projects like interstate gas pipelines. However, the concern on the other side is that a private party like PennEast could drag states into federal court. New Jersey’s state solicitor said that federal lawsuits against states that don’t consent in doing so, are never proper.” But Justice Breyer noted, “I don’t understand how any reasonable person would have delegated any eminent domain power to the Natural Gas Act, which was for interstate pipelines, without including the power to proceed against the state.”

“It’s a fascinating case and a decision either way will have long-lasting implications.”

Thomas Galvin, Rose Law Group regulatory attorney

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