SCOTUS Opinion: Natural Gas Act Permits Private Entities To Condemn State Property

In 1947, Congress amended the Natural Gas Act to permit the Federal Energy Regulatory Commission to issue certificates to natural gas companies enabling those companies to exercise federal eminent domain power in order to obtain the land needed to build their pipelines based on “public convenience and necessity.” In PennEast Pipeline Co, LLC v. New Jersey, PennEast received a certificate to build a natural gas pipeline and sued to condemn land needed for that pipeline that belonged to a State or its instrumentalities. The State argued that it was protected under sovereign immunity and won in the Third Circuit.

The Court, in a 5-4 decision by Chief Justice Roberts, reversed, holding that the Act authorized private companies to condemn all necessary property whether owned privately or by a State. The majority reasoned that federal eminent domain power had long been used to take property from States, and the same power had been given to private entities to exercise, concluding that the States had consented to that power when they ratified the Constitution. Justice Barrett, joined by Justices Thomas, Kagan, and Gorsuch, dissented, arguing that there was “no textual, structural, or historical support” for the conclusion that States had agreed to private condemnation suits when the Constitutional was ratified, and Congress could not use the Act to abrogate State sovereignty. Justice Gorsuch, joined by Justice Thomas, filed an additional dissent discussing a confusing jurisdictional issue the majority did not address.

A link to the opinion is here: