Does the natural gas in the pipeline condemnation have sovereign immunity?


Opinion analysis

Supreme Court Hold 5-4 in PennEast Pipeline Co. v. New Jersey This sovereign immunity does not protect New Jersey from a conviction lawsuit filed by a private company in federal court for obtaining pipeline property. Chief Justice John Roberts wrote the majority opinion, and Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh also joined the majority opinion. Justice Amy Connie Barrett objected, and Justice Clarence Thomas, Justice Elena Kagan, and Justice Neil Gorsuch joined the ranks. Gorsuch also wrote a separate objection added by Thomas.

background

PennEast obtained a certificate of public convenience and necessity from the Federal Energy Regulatory Commission under the Natural Gas Act to build a 116-mile pipeline from northeastern Pennsylvania to western New Jersey, which sparked controversy. In order to promote the pipeline project, the NGA delegates federal expropriation rights to private groups with public facilities and necessary certificates issued by FERC.

Shortly after receiving the certificate, PennEast filed a condemnation procedure in the Federal District Court against the property along the pipeline in which the State of New Jersey holds an interest. New Jersey, which opposes the pipeline, argues that it is not affected by the lawsuit under the 11th Amendment. The court rejected the defense of sovereign immunity. New Jersey filed an appeal, and the U.S. Court of Appeals for the Third Circuit overturned the original verdict. It found that although Congress can delegate the federal power of expropriation to private parties, waiving a state’s 11th Amendment sovereign immunity is a clearly different issue. In order to abolish sovereign immunity, the Third Circuit determined that Congress must clearly do so in the text of the regulations. The court found that the NGA lacked this.

PennEast sought review by the Supreme Court and was approved. The court also asked the United States to weigh the issues raised. Oral argument It happened in April.

Majority opinion

Roberts raised the question in writing on behalf of the majority of people: “Whether the federal government can grant the pipeline company the right of passage necessary to condemn national interests according to the constitution”, and pointed out that “[s]Since the founding of the nation, the United States has used its outstanding domain authority to build various infrastructure projects. When summarizing the NGA, he pointed out that, as originally passed, the regulation does not provide any mechanism for certificate holders. If the owner objects, they can acquire property, so that certificate holders have only “illusory construction rights.” However, Congress finally amended the NGA, granting the right of federal expropriation to the holder of the certificate.

The first question Roberts resolved was whether the Third Circuit had jurisdiction over New Jersey’s appeals. The United States argues that the lack of jurisdiction is because the NGA granted exclusive jurisdiction to the U.S. Court of Appeals for the District of Columbia Circuit to “confirm, modify or revoke” an order issued by FERC. Roberts quickly resolved the issue and concluded that in the proceedings of the Third Circuit, New Jersey neither modified nor shelved FERC’s order to authorize the PennEast pipeline. Therefore, the NGA’s exclusive jurisdiction clause has not been triggered.

Next, Roberts considered whether sovereign immunity is the merit of New Jersey’s available defense against PennEast’s condemnation process. Starting from discussing the scope of federal expropriation rights, Roberts pointed out “[s]Since its establishment, the federal government has exercised its famous domain powers through its own officials and private representatives. Although initially limited to “regions under exclusive federal jurisdiction,” federal expropriation rights continued to evolve. By the late 19th century, the Supreme Court confirmed that it “also extended to property within state boundaries.” In addition, states could not control the exercise of federal expropriation rights. The scope or way of

Roberts then considered whether the federal government could delegate its expropriation rights to private groups. Here, he first emphasized the long history of authorization and commented that “before and after the establishment of a colony, it was commonplace to authorize private individuals to condemn land for various public purposes.” Roberts then concluded that through its clear terms, the NGA authorizes private certificate holders to initiate reprimand procedures against private parties and the state.

He then resolved the crux of the New Jersey dispute, that is, the 11th Amendment prohibits PennEast from filing a lawsuit without the consent of the state government. Here, Roberts initially realized that only a few cases can sue a state. First, if a state agrees, it can be sued. Second, if Congress cancels its sovereign immunity in order to implement the 14th amendment, it can sue a state. Finally, a state can be sued if “it agrees to adapt to the’plan of the convention'”, which is a shorthand for “the structure of the original constitution itself”, and “including the waiver of certain sovereign immunity. Show consent.”

Most people then solved Seminole Tribe of Florida v. Florida, It strengthens state sovereign immunity by restricting federal jurisdiction over states, and recognizes that “Article I cannot be used to circumvent constitutional restrictions on federal jurisdiction.” Otherwise, if Congress is allowed to abolish states in accordance with its powers in Article 1. The state’s “inherent litigation immunity will be’deprived’.” Roberts subsequently evaded Seminole Tribe of Florida By asserting that “the abolition of Congress is not the only means for countries to sue. … if the country agrees to a plan to adapt to the convention, they can also be sued.” Therefore, Roberts determined that “the states agree to exercise federal expropriation rights in the plan of the convention, including by Condemnation procedure initiated by a personal representative.”

The final argument of New Jersey’s assertion is that the NGA lacks the clarity needed to authorize federal representatives to conduct reprimand procedures. Roberts quickly dismissed this argument and found that New Jersey “misunderstood the issue in this case as whether Congress can authorize it to sue the states.” According to Roberts, the appropriate question facing the court is “whether Congress can delegate federal expropriation rights.” To private groups”. Therefore, there is no requirement that Congress must speak “unambiguously” when authorizing private parties to exercise federal expropriation rights.

Barrett’s dissent

In her objection, Barrett disputed the majority’s overall analysis framework and the argument that states waived sovereign immunity in the convention plan. According to Barrett, although most people “see the investigation as about the scope of the federal government’s right of expropriation, this is the wrong way to think about the problem.” On the contrary, in the absence of independent expropriation in the constitution, “[a]Therefore, the expropriation of property prescribed by Congress is the exercise of another constitutional power—in the case of the Natural Gas Act, the commercial clause—enhanced by necessary and appropriate clauses. “

Therefore, Barrett believes that proper analysis begins with commercial terms.According to her method, Congress relied on its power to supervise interstate trade and promulgated the NGA, “We have repeatedly believed that the commercial clause does not deprive states of sovereign immunity.” In addition, in Seminole Tribe of Florida, The court recognized that Congress cannot abolish sovereign immunity and authorize private litigation against countries that do not agree. Therefore, she concluded that “Congress cannot allow private parties like PennEast to take condemnation actions against disagreeing states like New Jersey.”

Gorsuch’s dissent

While fully joining Barrett’s objection, Gorsuch wrote a very strange separate objection, in which he pointed out that states enjoy two different types of federal litigation immunity. He called the first type of immunity “structural immunity”, which is based on the structure of the constitution. The first type of immunity “is the constitutional right of a sovereign state.”It applies to “federal courts and state courts” and “regardless of whether the plaintiff is a citizen of the same state, a citizen of a different state, or non--citizen. Gorsuch wrote that structural immunity “sounds to belong to personal jurisdiction” and can therefore be waived.

Another type of sovereign immunity is derived from the text of the 11th amendment. According to Gorsuch, it “provides an ironclad rule for a specific category of diverse suits” and “the text means what it says. It eliminates federal jurisdiction over a set of cases: different plaintiffs based on law or Equity lawsuits against the states.” He finally pointed out that neither the majority opinion nor the parties clearly resolved this issue. In a footnote, he pointed out “[w]The court did say that in its hasty reflection on the “Eleventh Amendment” immunity, it involved Structural “Immunity” rather than the immunity of the 11th Amendment, which he believes should prohibit PennEast’s litigation.

Gorsuch further pointed out that all the cases cited by most people “are not part of the text of the Eleventh Amendment”. He finally pointed out that although the majority and the parties may not explicitly consider the immunity granted by the 11th Amendment, “[t]However, the lower courts are obliged to consider the issue of remand pending trial before hearing the case. “

It remains to be seen whether Gorsuch’s objections will give New Jersey another opportunity to defend against PennEast’s remand conviction. In addition, the fight over the pipeline is not over yet, because the State of New Jersey has previously filed a separate challenge in the DC Circuit Court, which has been on hold until the Supreme Court makes a ruling.



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