Pipeline Company Can Use Eminent Domain to Claim State Land

June 29, 2021 by Dan McCue
Looking up at the entrance of the U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON — The Supreme Court ruled Tuesday a company building a natural gas pipeline in New Jersey can continue to rely on eminent domain to claim state land in its path.

The 5-4 ruling by the court included both liberal and conservative members of the court in the majority.

But it drew a quick rebuke from a prominent Democrat in Congress who said he was “deeply disturbed” and “disappointed” by the outcome.

“The Supreme Court’s decision … sets the dangerous precedent of allowing interstate pipelines to take state-owned lands without a state’s consent,” Said Rep. Frank Pallone, Jr., chairman of the House Energy and Commerce Committee.

“States like New Jersey should be able to retain their right to do what they wish with the lands they own, and no private actor — including pipeline companies — should be able to usurp that right,” Pallone added. “I am determined to work with my colleagues to do everything in our power to preserve this important state right.”

The case involves a planned 116-mile pipeline that the PennEast Pipeline Co. wants to run from Pennsylvania’s Luzerne County to Mercer County in New Jersey. 

The Federal Energy Regulatory Commission had allowed the company’s project to move forward in 2018 by granting PennEast a so-called certificate of public convenience and necessity, but lawsuits followed.

The company ultimately took New Jersey to court to acquire state-controlled land for its project. 

PennEast argued the commission’s greenlighting of its project allowed it to take New Jersey to court and to use eminent domain to acquire state-controlled properties. 

New Jersey, which opposes the pipeline project, had argued that PennEast couldn’t take the state to court to acquire the property — only the United States government can. 

But Chief Justice John Roberts, writing for the majority, disagreed.

Roberts said that when FERC issues a certificate of public convenience and necessity, federal law authorizes the certificate’s holder “to condemn all necessary rights-of-way, whether owned by private parties or states.”

Roberts was joined by conservative justices Samuel Alito and Brett Kavanaugh and liberal justices Stephen Breyer and Sonia Sotomayor.

Despite today’s ruling, a separate challenge to the pipeline is pending in a federal appeals court in Washington.

The case is PennEast Pipeline Co. v. New Jersey, 19-1039.

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