The Supreme Court on Wednesday wrestled with how to resolve a clash between the state of New Jersey and a pipeline company over land the company needs for a natural gas pipeline.
The proposed pipeline would run from Pennsylvania’s Luzerne County to Mercer County in New Jersey. The Federal Energy Regulatory Commission had allowed the PennEast Pipeline Co.’s project to move forward in 2018, but lawsuits followed.
The company ultimately took New Jersey to court to acquire state-controlled land for its project. PennEast says the commission’s greenlighting of its project gave it the ability to take New Jersey to court and to use eminent domain to acquire state-controlled properties.
New Jersey opposes the project. On Wednesday, its lawyer Jeremy Feigenbaum, argued that PennEast can’t take the state to court to acquire the property — only the United States government can. He said a federal law, the Natural Gas Act, does not explicitly authorize private lawsuits by private parties against states.
“The United States can condemn sovereign land when it takes responsibility and ownership of the suit, but it can’t select a private party to do so over a state’s objection,” Feigenbaum said during arguments that were held by telephone because of the coronavirus pandemic. Wednesday marked Feigenbaum’s first appearance before the nation’s highest court.
Some justices seemed troubled that the federal government was not ultimately involved in court proceedings to obtain the property. “My concern here is that, I mean, in several cases, we’ve talked about the need for a suit against states to be conducted by politically responsible actors, federal lawyers,” Justice Elena Kagan told Edwin Kneedler, who was arguing for the Biden administration in support of PennEast.
Justice Brett Kavanaugh asked PennEast’s lawyer Paul Clement what would happen if the company loses.
“If we lose this case … this pipeline will, you know, not be built at least in anything like its current configuration,” Clement acknowledged.
A federal appeals court sided with New Jersey while a lower court had sided with PennEast.
The case is PennEast Pipeline Co. v. New Jersey, 19-1039. A decision is expected by the end of June.