PennEast claimed that its Federal Energy Regulatory Commission (FERC) certificate declaring a public need for the pipeline authorises them to exercise the federal eminent domain power to secure the needed property. New Jersey, however, asserted property interests on the contested parcels of land, and claimed sovereign immunity.
A District Court initially denied the motion by New Jersey to block the eminent domain acquisition, but the Third Circuit vacated the District Court’s order, concluding that because the law did not clearly delegate the Federal Government’s ability to sue nonconsenting States to certificate holders, PennEast was not authorised to condemn the property in New Jersey.
"By its terms, [Section] 717f(h) authorises FERC certificate holders to condemn all necessary rights-of-way, whether owned by private parties or States. Such condemnation actions do not offend state sovereignty, because the States consented at the founding to the exercise of the federal eminent domain power, whether by public officials or private delegatees”, Justice John Roberts said in the court’s written opinion.
The decision was made along a 5-4 split, with Justices John Roberts, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh joining in the majority opinion, and Justices Neil Gorsuch, Clarence Thomas, Amy Coney Barrett, and Elena Kagan dissenting.
