PennEast Pipeline Co., LLC v. New Jersey

Whether the NGA delegates to FERC certificate holders the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.

The Federal Energy Regulatory Commission (FERC) granted Petitioner a certificate to build an interstate pipeline to transport natural gas. 15 U.S.C. §717f(h). New Jersey (Respondent) refused to allow Petitioner right-of-way through 49 property interests. Petitioner brought this case to commence condemnation proceedings. The District Court ruled that condemnation was proper, reasoning that the FERC certificate meant that “eminent domain power” was delegated to Petitioner. On appeal, the Third Circuit reversed and held that New Jersey had 11th Amendment immunity against the condemnation proceedings because §717f(h) does not expressly delegate the federal “power to sue states.”  Petitioner argues that the Third Circuit erred where the court required §717f(h) to expressly delegate the federal “power to sue states” because the plain language grants certificate-holders the “federal eminent domain power” for necessary constructions. Petitioner also argues that establishing a state government exception to “federal eminent domain power” is not consistent with Supreme Court precedent.