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Supreme Court wades into national debate over pipelines

Justices rule states cannot overturn federal eminent domain permits for pipeline projects.

Updated: June 29, 2021 - 11:21pm

As both parties debate the construction of new oil and gas pipelines, the U.S. Supreme Court has weighed in, saying states cannot overturn federal eminent domain permits for those projects.

The Supreme Court ruled 5-4 Tuesday in PennEast Pipeline Co. v. New Jersey that the state of New Jersey was not exempt from federal eminent domain provisions.

In the case, the PennEast Pipeline company received a permit to build a 116-mile pipeline from the Federal Energy Regulatory Commission. That pipeline went through New Jersey, and the company obtained most of the necessary rights-of-way for construction.

However, when it came time to obtain them from the state of New Jersey, the state’s government resisted.

New Jersey argued that while other entities are subject to eminent domain, state governments are exempt under the 11th amendment.

The 11th amendment reads:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The pipeline company argued that federal rules trumped state preferences.

“Simply put, state veto power and interstate pipelines are incompatible, as Congress recognized more than 70 years ago in arming pipeline certificate holders with the federal eminent domain power,” PennEast argued. “As FERC explained, the decision below is both profoundly wrong and profoundly consequential – a combination that cries out for this Court’s review.”

The 5-4 decision did not fall along traditional partisan leanings. Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, Brett Kavanaugh and Chief Justice John Roberts sided with the pipeline company. Justices Neil Gorsuch, Clarence Thomas, Amy Coney Barrett and Elena Kagan opposed.

Roberts in the court’s majority opinion pointed to previous federal eminent domain uses in railroads and other infrastructure projects, saying pipelines are allowed the same protection.

“When the Framers met in Philadelphia in the summer of 1787, they sought to create a cohesive national sovereign in response to the failings of the Articles of Confederation,” the opinion reads. “Over the course of the Nation’s history, the Federal Government and its delegates have exercised the eminent domain power to give effect to that vision, connecting our country through turnpikes, bridges, and railroads – and more recently pipelines, telecommunications infrastructure, and electric transmission facilities. And we have repeatedly upheld these exercises of the federal eminent domain power – whether by the Government or a private corporation, whether through an upfront taking or a direct condemnation proceeding, and whether against private property or state-owned land.”

Environmental groups took issue with the ruling, arguing it would lead to more pollution and contribute to climate change.

“The science is clear: more fracked gas means more heat waves, stronger hurricanes and more unnecessary deaths from fossil fuel pollution,” said Kelly Sheehan Martin of the Sierra Club. “Today’s disappointing decision allows a fossil fuel pipeline to proceed that will harm communities and public health. But, the fight against PennEast is far from over, and the company continues to face stiff opposition. Governor Murphy can and must say no to this disastrous project.”

Other groups praised the ruling as a win for the local economies and the integrity of U.S. infrastructure contracts.

“The Supreme Court is upholding rule of law,” said Daniel Turner, founder of the energy workers advocacy group, Power the Future. “One of the problems with the Biden administration’s decisions on ANWR and Keystone, outside of the energy and economic implications, is the idea that companies enter into negotiation with the American government, and then those negotiations are made null and void by the political persuasion of politicians. If anything the Supreme Court is just upholding the rule of law. We can’t cancel projects ... infrastructure based on political whims. Of course, the job and energy implications, but just the larger implications of how we negotiate government contracts.

“Wouldn’t you be afraid if the next administration is going to change laws to punish the industries they don’t like?”

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