Home Immunity Is sovereign immunity off the gas in the case of pipeline conviction?

Is sovereign immunity off the gas in the case of pipeline conviction?


The Supreme Court outfit 5-4 in PennEast Pipeline Co. v. New Jersey this sovereign immunity does not protect New Jersey from conviction proceedings by a private company in federal court to obtain pipeline properties. Chief Justice John Roberts drafted the majority opinion, joined by Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor and Brett Kavanaugh. Justice Amy Coney Barrett dissented and was joined by Justices Clarence Thomas, Elena Kagan and Neil Gorsuch. Gorsuch also separately wrote a dissent joined by Thomas.


The dispute arose when PennEast obtained, under the Natural Gas Act, a certificate of public utility from the Federal Energy Regulatory Commission to build a 116-mile pipeline from northeastern Pennsylvania to western New Jersey. . To facilitate pipeline projects, the NGA delegates prominent federal authority to private parties who have certificates of public utility issued by the FERC.

Shortly after receiving its certificate, PennEast initiated sentencing proceedings in federal district court against the properties along the pipeline route in which New Jersey held an interest. New Jersey, which opposes the pipeline, said it was immune from 11th Amendment lawsuits. The court rejected the sovereign immunity defense. New Jersey appealed and the United States Court of Appeals for the 3rd Circuit reversed. He found that while Congress could delegate federal power in the eminent domain to a private party, lifting a state’s 11th Amendment sovereign immunity was a distinctly different matter. To repeal sovereign state immunity, the 3rd Circuit determined that Congress was required to do so clearly in the text of the law, which the court found lacking in the NGA.

PennEast requested a review by the Supreme Court, which was granted. The tribunal also asked the United States to intervene on the issues presented. The pleadings took place in April.

The majority opinion

Writing for the majority, Roberts framed the framed question as “can the federal government constitutionally confer on pipeline companies the power to condemn necessary right-of-ways in which a state has an interest”, noting that “”[s]since founding, the United States has used its eminent domain authority to build a variety of infrastructure projects. Summarizing the NGA, he pointed out that, as originally enacted, the law did not provide certificate holders with any mechanism to obtain properties if owners objected, leaving certificate holders only “Illusory right to build”. Eventually, however, Congress amended the NGA to delegate federal eminent domain power to certificate holders.

The first question Roberts addressed was whether the 3rd Circuit had jurisdiction over the New Jersey appeal. The United States argued that jurisdiction was lacking because the NGA confers exclusive jurisdiction on the United States Court of Appeals for the District of Columbia Circuit to “affirm, vary or set aside” orders issued by the District of Columbia. FERC. Roberts quickly resolved this issue by concluding that in the 3rd Circuit proceeding New Jersey did not seek to vary or reverse the FERC order clearing the PennEast pipeline. Therefore, the exclusive jurisdiction provision of the NGA was not triggered.

Next, Roberts considered the merits of whether sovereign immunity was an available defense for New Jersey to resist PennEast’s sentencing process. Beginning with a discussion of the scope of federal eminent domain power, Roberts noted that “[s]ince its foundation, the federal government has exercised its eminent domain authority both through its own agents and private delegates. Although initially limited to “areas subject to exclusive federal jurisdiction”, the federal power of eminent domain evolved and, by the end of the 19th century, the Supreme Court confirmed that it “also extended to properties located within within the borders of the State “. Moreover, the states had no control over the extent or manner in which the eminent federal domain was exercised.

Roberts then questioned whether the federal government could delegate its eminent domain authority to private parties. Here he first pointed out that there is a long history of delegation, noting that it “was common before and after the founding of settlements, and then of states, to allow private condemnation of land for various public purposes.” . Roberts went on to conclude that, by its express terms, the NGA allows private certificate holders to initiate sentencing proceedings against private parties, as well as states.

He then went to the crux of New Jersey’s argument, which is that, without state consent, the 11th Amendment banned the pursuit of PennEast. Here, Roberts first acknowledged that there are only a few circumstances in which a state can be sued. First, a state can be sued if it consents to it. Second, a state can be sued if Congress repealed its sovereign immunity to enforce the 14th Amendment. Finally, a state can be sued if it “has agreed to act within the ‘plan of the Convention’”, which is “a shorthand for“ the structure of the original Constitution itself ”” and “includes certain waivers of sovereign immunity to which all States have implicitly consented at the founding.

The majority then attacked Seminole Tribe of Florida c. Florida, which strengthened sovereign state immunity by restricting federal judicial power over states and recognized that “Article I cannot be used to circumvent constitutional limitations on federal jurisdiction.” Otherwise, “the inherent state immunity from prosecution would be ‘gutted’ if Congress were allowed to revoke state immunity under its Article I powers. Roberts then avoided the application of Seminole Tribe of Florida by asserting that “repeal by Congress is not the only way to subject states to prosecution. … States can also be prosecuted if they have consented to prosecute under the Convention. Therefore, Roberts determined that “the states have consented in the Convention plan to the exercise of eminent federal power, including sentencing proceedings brought by private delegatees.”

New Jersey’s final argument was that the NGA lacked the clarity required to authorize sentencing proceedings by federal delegates. Roberts quickly shook off this claim when he found that New Jersey “misinterpreted the issue in this case as if Congress could delegate its ability to sue states.” According to Roberts, the appropriate question in court was “rather whether Congress could delegate the federal power of eminent domain to private parties”. As such, there was simply no requirement that Congress should speak with “unchallengeable clarity” when empowering a private party to exercise eminent federal power in the area.

Barrett’s dissent

In his dissent, Barrett challenged the majority’s overall analytical framework and the assertion that states waived their sovereign immunity under the Convention scheme. According to Barrett, while the majority “present the inquiry as an inquiry into the extent of ’eminent federal power’, this is the wrong way to approach the problem.” On the contrary, in the absence of a prominent autonomous domain power in the Constitution, “[a]Any takeover provided for by Congress is therefore the exercise of another constitutional power – in the case of the natural gas law, the commerce clause – augmented by the necessary and appropriate clause. “

Barrett argued, therefore, that the proper analysis begins with the trade clause. According to his approach, Congress enacted the NGA based on its power to regulate interstate commerce, and “we have repeatedly argued that the commerce clause does not deprive states of their sovereign immunity.” In addition, in Seminole Tribe of Florida, the court recognized that Congress cannot repeal sovereign state immunity and allow private prosecutions against unwilling states. As a result, she concluded that “Congress cannot allow a private party like PennEast to bring a condemnation action against a non-consenting state like New Jersey.”

Gorsuch’s dissent

Gorsuch, while fully joining Barrett’s dissent, wrote a very curious separate dissent, where he noted that states enjoy two distinct types of federal immunity from prosecution. The first type of immunity he called “structural immunity”, which is based on the structure of the Constitution. This first type of immunity “is a constitutional right of a sovereign state”. It applies “to both federal and state courts”, and it applies “whether the claimant is a citizen of the same state, a citizen of another state, or a no-Citizen. “Structural immunity, Gorsuch wrote,” seems to be a personal matter, “so it can be waived.

The other type of sovereign immunity derives from the text of the 11th Amendment. According to Gorsuch, it “provides a foolproof rule for a particular category of diversity suits,” and the “text means what it says. It eliminates federal judicial power over a set of cases: lawsuits brought against states, in law or in equity, by various plaintiffs. He concluded by noting that neither the majority opinion nor the parties expressly address this issue. In a footnote, he noted that “[w]What the Court says, in an uncontrollable rumination on the waiver of the “Eleventh Amendment”, relates to of construction immunity ”and not 11th Amendment immunity, which he said should bar the prosecution of PennEast.

Gorsuch further noted that not all cases cited by the majority “fall within the text of the Eleventh Amendment”. He concluded his dissent by stating that while the majority and the parties may not have explicitly considered the immunity granted by the 11th Amendment, “[t]However, lower courts have an obligation to consider this issue in pre-trial detention before proceeding to the merits.

It remains to be seen whether Gorsuch’s dissent results in yet another opportunity for New Jersey to delay PennEast’s lawsuits. Moreover, the fight for the pipeline is not quite over yet as New Jersey previously filed a separate challenge in the DC Circuit, which has been put on hold pending the Supreme Court ruling.