Supreme Court Rules in Eminent Domain Case

By a 5-to-4 vote, the court said the federal government can delegate its power to condemn state property to private companies.


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New Jersey cannot block a natural gas pipeline, the Supreme Court rules.

The Supreme Court in Washington this month.Credit…Stefani Reynolds for The New York Times

June 29, 2021, 12:12 p.m. ET

The Supreme Court on Tuesday cleared the way 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.

Chief Justice John G. Roberts Jr., writing for the majority in the 5-to-4 decision, 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 owns some of the parcels the company sought to condemn, objected, saying that the doctrine of sovereign immunity barred the company’s efforts.

Rejecting that argument, Chief Justice Roberts wrote that there is 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. (An earlier version omitted Justice Kagan and incorrectly included Justice Alito as among the dissenters.)

Justice Barrett said the federal government has 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.”

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