Amicus Curiae Brief — PennEast Pipeline Company, LLC, Petitioner v. New Jersey, et al.

No. 19-1039

In the Supreme Court of the United States

PENNEAST PIPELINE COMPANY, LLC, PETITIONER

v.

STATE OF NEW JERSEY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

DAVID L. MORENOFF

Acting General Counsel

JOHN LEE SHEPHERD, JR.

Director of Legal Policy

ROBERT H. SOLOMON

Solicitor

ANAND R. VISWANATHAN

Attorney

Federal Energy Regulatory

Commission

Washington, D.C. 20426

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN D. BRIGHTBILL

ERIC GRANT

Deputy Assistant Attorneys

General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

MICHAEL BUSCHBACHER

RACHEL HERON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Pursuant to the Natural Gas Act (NGA), 15 U.S.C.

717 et seq., the Federal Energy Regulatory Commission

(FERC) authorized petitioner to construct an interstate

natural-gas pipeline along a particular route and to acquire all necessary land for that pipeline, including, if

necessary, by eminent domain. When petitioner later

initiated an eminent-domain proceeding to acquire land

in which respondents claim an interest, respondents

challenged petitioner’s authority to initiate that condemnation suit. The question presented is as follows:

Whether the NGA’s eminent-domain provision,

15 U.S.C. 717f(h), authorizes private entities like petitioner to initiate condemnation suits to acquire Stateowned property that FERC has determined is necessary for the construction of an interstate pipeline.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Discussion ...................................................................................... 7

A. The court of appeals’ decision is incorrect .................... 8

B. The court of appeals’ decision warrants review ......... 20

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Adorers of the Blood of Christ v. FERC,

897 F.3d 187 (3d Cir. 2018) ................................................ 10

Alden v. Maine, 527 U.S. 706 (1999)........................ 15, 18, 20

American Energy Corp. v. Rockies Express Pipeline

LLC, 622 F.3d 602 (6th Cir. 2010) ..................................... 10

Blatchford v. Native Village, 501 U.S. 775 (1991) ........ 15, 18

Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ................. 18

City of Tacoma v. Taxpayers, 357 U.S. 320 (1958) .......... 7, 9

Dames & Moore v. Regan, 453 U.S. 654 (1981) .................. 18

Department of Homeland Sec. v. MacLean,

574 U.S. 383 (2015).............................................................. 13

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000).............................................................. 12

Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485 (2019) .......... 15

Georgia v. City of Chattanooga, 264 U.S. 472 (1924) ......... 14

Gonzalez v. Thaler, 556 U.S. 134 (2012) .............................. 10

Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885) .................. 16

Kelo v. New London, 545 U.S. 469 (2005) ........................... 16

Kohl v. United States, 91 U.S. 367 (1876) ........................... 17

Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020) ............... 11

NLRB v. Noel Canning, 573 U.S. 513 (2014) ..................... 18

(III)

IV

Cases—Continued:

Page

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,

313 U.S. 508 (1941).............................................................. 15

Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881 (2019) ......................................................... 11

United States v. Morrison, 529 U.S. 598 (2000) ................. 11

United States v. Texas, 143 U.S. 621 (1892) ....................... 15

Vermont Agency of Natural Res. v. United States

ex rel. Stevens, 529 U.S. 765 (2000) ................................... 18

Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894

(2019) .................................................................................... 11

Constitution, statutes, and regulations:

U.S. Const.:

Art. I, § 8, Cl. 3 ............................................................... 11

Commerce Clause ................................................ 13, 20

Art. III ............................................................................ 19

Amend. XI ............................................................ 5, 20, 22

Act of Mar. 3, 1809, ch. 31, § 7, 2 Stat. 541-542 ................... 17

Act of Mar. 2, 1831, ch. 85, 4 Stat. 477 ................................. 17

Act of Feb. 18, 1888, ch. 13, § 3, 25 Stat. 36-37 ................... 17

Act of July 11, 1890, ch. 669, § 4, 26 Stat. 269-270 .............. 17

Act of Nov. 6, 1966, Pub. L. No. 89-774, 80 Stat.

1350-1351 ............................................................................. 13

Amtrak Improvement Act of 1974, Pub. L. No.

93-496, § 6, 88 Stat. 1528-1530 ........................................... 13

Energy Policy Act of 1992, Pub. L. No. 102-486,

Tit. XVII, § 1701(d), 106 Stat. 3009................................... 12

Federal Power Act, ch. 285, 41 Stat. 1063............................. 7

16 U.S.C. 814 (§ 21) ........................................................ 12

16 U.S.C. 825l ............................................................... 7, 9

General Bridge Act of 1946, ch. 753, Tit. V, § 509,

60 Stat. 849 .......................................................................... 17

V

Statutes and regulations—Continued:

Page

Natural Gas Act, 15 U.S.C. 717 et seq. .................................. 1

15 U.S.C. 717(a)................................................................ 1

15 U.S.C. 717(b) ............................................................... 1

15 U.S.C. 717f (a) .............................................................. 2

15 U.S.C. 717f (b) .............................................................. 2

15 U.S.C. 717f (c) .............................................................. 2

15 U.S.C. 717f (d) .............................................................. 2

15 U.S.C. 717f (e) .................................................... 2, 3, 19

15 U.S.C. 717f (f ) .............................................................. 2

15 U.S.C. 717f (h) ................................................... passim

15 U.S.C. 717r (b) ........................................... 5, 7, 8, 9, 10

1667 Va. Mill Act, reprinted in William Waller

Hening, Act IV, 2 Stat. 260-261 (R. & W. & G.

Bartow eds., 1823)............................................................... 16

1735 Pa. Highway Act, reprinted in 4 James T.

Mitchell & Henry Flanders, The Statutes at Large

of Pennsylvania, 296-297 (Clarence M. Busch ed.

1897) ..................................................................................... 16

18 C.F.R.:

Section 157.6(d) .......................................................... 2, 19

Section 157.14(a)(6) .......................................................... 2

Section 157.203 ................................................................. 3

Miscellaneous:

Abraham Bell, Private Takings, 76 U. Chi. L. Rev.

517 (2009) ............................................................................. 17

H.R. Rep. No. 474, 102d Cong., 2d Sess. Pt. 8 (1992) ........ 13

1 Nichols on Eminent Domain (2020) ................................ 16

PennEast Pipeline Project Maps, https://go.usa.gov/

x7tTn (last visited Dec. 9, 2020) .......................................... 2

S. Rep. No. 429, 80th Cong., 1st Sess. (1947)............ 4, 12, 21

In the Supreme Court of the United States

No. 19-1039

PENNEAST PIPELINE COMPANY, LLC, PETITIONER

v.

STATE OF NEW JERSEY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s order inviting the Acting Solicitor General to express the

views of the United States. In the view of the United

States, the petition for a writ of certiorari should be

granted.

STATEMENT

1. The Natural Gas Act (NGA), 15 U.S.C. 717 et seq.,

declares that “[f ]ederal regulation in matters relating

to the transportation of natural gas and the sale thereof

in interstate and foreign commerce is necessary in the

public interest.” 15 U.S.C. 717(a). To advance that interest, the NGA sets forth a detailed regulatory scheme

governing “the transportation of natural gas in interstate commerce.” 15 U.S.C. 717(b).

(1)

2

The NGA vests the Federal Energy Regulatory

Commission (FERC) with primary authority to determine whether additional pipelines and related facilities

are needed and, if so, where they should be located and

whom they should serve. See, e.g., 15 U.S.C. 717f(a)

(providing that FERC may order a natural-gas company “to extend or improve its transportation facilities”

upon finding that expansion is “in the public interest”);

15 U.S.C. 717f(b) (requiring natural-gas companies to

obtain FERC’s approval before abandoning any such

facilities); 15 U.S.C. 717f(c) (authorizing FERC to authorize construction of additional interstate pipelines);

15 U.S.C. 717f(f ) (authorizing FERC to determine the

area to be served).

To that end, the NGA authorizes FERC to issue a

“certificate of public convenience and necessity * * *

authorizing the whole or any part of the operation, sale,

service, construction, extension, or acquisition” of certain natural-gas facilities, including interstate pipelines. 15 U.S.C. 717f(e). A company seeking such a certificate must submit an application to FERC, identifying, inter alia, the proposed interstate pipeline’s “[l]ocation, length, and size.” 15 U.S.C. 717f(d); see 18 C.F.R.

157.14(a)(6) (requiring the submission of maps of all facilities proposed to be constructed or acquired); see also,

e.g., PennEast Pipeline Project Maps, https://go.usa.gov/

x7tTn. Applicants are also required to make a “good

faith effort to notify all affected landowners” whose

property may be crossed by the proposed pipeline or

used during construction. 18 C.F.R. 157.6(d).

If FERC determines that the proposed interstate

pipeline “is or will be required by the present or future

public convenience and necessity,” FERC issues a certificate authorizing its construction, attaching “such

3

reasonable terms and conditions as the public convenience and necessity may require.” 15 U.S.C. 717f(e).

Those terms and conditions include the specific location

authorized for construction of the pipeline. See, e.g.,

162 FERC ¶ 61,053, slip op. 2-16. 1 The NGA does not

restrict where FERC may authorize interstate pipelines to be built or what types of land a pipeline’s route

may cross, so long as the route chosen meets the publicconvenience-and-necessity standard.

Upon FERC’s issuance of a certificate of public convenience and necessity, the NGA authorizes the certificate’s holder to acquire by eminent domain all property

“necessary” for construction of the authorized interstate pipeline if it cannot acquire the property by voluntary agreement. 15 U.S.C. 717f(h). Specifically, Section

717f(h) provides:

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or

is unable to agree with the owner of property to

the compensation to be paid for, the necessary rightof-way to construct, operate, and maintain a pipe line

or pipe lines for the transportation of natural

gas * * * , it may acquire the same by the exercise

of the right of eminent domain in the district court of

the United States for the district in which such property may be located, or in the State courts.

Ibid.

FERC regulations also provide for, in some instances, a “blanket certificate” that authorizes the holder to undertake future construction activities, sometimes outside of the specifically authorized

right of way, without seeking further approval. 18 C.F.R. 157.203.

The meaning and validity of that regulation are not presented here.

1

4

As originally enacted, the NGA did not authorize certificate holders to acquire land by eminent domain pursuant to federal law. See S. Rep. No. 429, 80th Cong.,

1st Sess. 1 (1947) (Senate Report). Pipeline companies

relied instead on state-law mechanisms to acquire the

needed land. Ibid. States could (and did) withhold authority to take land for projects that they disfavored,

for example, those of foreign corporations. Id. at 2-3.

Congress added Section 717f(h) in 1947 to prevent

States from “defeat[ing] the very objectives of the Natural Gas Act” and “nullif [ ying]” the Federal Power

Commission’s (now FERC’s) exercise of its “exclusive

jurisdiction to regulate the transportation of natural

gas in interstate commerce.” Id. at 3-4.

2. In 2015, petitioner applied to FERC for a certificate of public convenience and necessity under the

NGA, requesting authorization to construct a 116-mile

pipeline from Luzerne County, Pennsylvania, to Mercer

County, New Jersey, serving natural-gas markets in

Pennsylvania, New Jersey, and New York. See Pet.

App. 36-37. Following a nearly two-year review of the

proposed project, including consideration of protests

filed by respondents and others, FERC determined

that the public convenience and necessity required construction of the proposed pipeline along the particular

route proposed, and granted the certificate. Slip op. 1.

In so doing, FERC considered the project’s impact

on affected property owners, including respondents.

Slip op. 16. It also recognized that petitioner had been

yet unable “to reach easement agreements with a number of landowners” and that, upon issuance of the certificate, petitioner would be authorized “to acquire the

necessary land or property to construct the approved

5

facilities by exercising the right of eminent domain.”

Id. at 16-17.

Respondents and other parties to the FERC proceeding filed petitions for review of FERC’s order in

the D.C. Circuit under 15 U.S.C. 717r(b). Delaware

Riverkeeper Network v. FERC, No. 18-1128 (filed Dec.

21, 2018). Those consolidated petitions are being held

in abeyance pending disposition of this case.

3. Meanwhile, petitioner filed this action against respondents and other property owners, seeking an

award of possession by eminent domain of the parcels

necessary to construct the authorized pipeline. See Pet.

App. 50-51. The district court granted petitioner’s application for condemnation orders, rejecting respondent’s argument that state sovereign immunity barred

the proceeding against them, and appointed a panel of

special masters to determine just compensation. Id. at

34-102. The court of appeals reversed. Id. at 1-31.

In the court of appeals’ view, it was “essential * * *

to distinguish between the two powers at issue here:

the federal government’s eminent domain power and its

exemption from Eleventh Amendment immunity.” Pet.

App. 12. The court concluded that the NGA validly delegated the federal power of eminent domain to holders

of a certificate of public convenience and necessity. Id.

at 3. But it reasoned that Congress had not spoken sufficiently clearly to delegate what it regarded as the “separate and distinct” “power to hale [a] State[ ] into federal court” for the purpose of exercising that eminentdomain authority. Id. at 2-3. The court explained that

it doubted that the federal government could, as a constitutional matter, delegate its exemption from a defendant State’s Eleventh Amendment immunity to private parties. Id. at 14-26. It then reasoned, based on

6

that constitutional doubt, that it would require a clear

statement from Congress before recognizing such a delegation. Id. at 27. The court found no such statement

in the NGA. Id. at 28-30.

In response to petitioner’s warning that the court of

appeals’ holding would give States a veto power over interstate pipelines, the court recognized that its holding

“may disrupt how the natural gas industry” has operated under the NGA for the “past eighty years.” Pet.

App. 30. The court suggested that a federal official

might be able to file any necessary condemnation actions and then transfer the property to the certificate

holder. Ibid. But it reasoned that, even if FERC lacked

that authority, “that is an issue for Congress, not a reason to disregard sovereign immunity.” Id. at 31.

4. Following the court of appeals’ decision, petitioner sought a declaratory order from FERC to explain the agency’s view of the scope of Section 717f(h).

After examining the NGA’s text, context, and history,

FERC concluded that Section 717f(h) “was enacted by

Congress to enable certificate holders to overcome attempts by states to block the construction of naturalgas facilities the Commission determined to be in the

public convenience and necessity” and included the authority to acquire by eminent domain all property necessary to construct an authorized pipeline, whether

owned by private parties or by a State. 170 FERC

¶ 61,064, 61,497; see id. at 61,491-61,497.

Contrary to the court of appeals’ suggestion, the

Commission determined that the agency lacked statutory authority to itself condemn property (State-owned

or otherwise) under the NGA. 170 FERC at 61,49761,499. And it found that, absent another mechanism

for obtaining the necessary property rights, the Third

7

Circuit’s opinion could have “profoundly adverse impacts on the development of the nation’s interstate natural gas transportation system.” Id. at 61,499.

DISCUSSION

The court of appeals’ decision is incorrect. Section

717f(h) authorizes “any holder of a certificate of public

convenience and necessity” to acquire “the necessary

right-of-way to construct, operate, and maintain a pipe

line or pipe lines for the transportation of natural gas

* * * by the exercise of the right of eminent domain,”

whenever the holder cannot acquire the property by

voluntary agreement. 15 U.S.C. 717f(h). That authority

fully applies to property in which a State claims an interest. And the court of appeals erred in concluding

that principles of state sovereign immunity require a

different result.

The court of appeals erred at the threshold, however,

in exercising jurisdiction over that issue. The NGA provides for direct review of a certificate of public convenience and necessity issued by FERC in the D.C. Circuit

or the circuit in which the natural-gas company has its

principal place of business. 15 U.S.C. 717r(b). In City

of Tacoma v. Taxpayers, 357 U.S. 320 (1958), this Court

interpreted a materially identical provision in the Federal Power Act (FPA), 16 U.S.C. 825l, to require any

objections to an equivalent order under the FPA, including “to the legal competence of the licensee to execute its terms,” to be made in that direct review proceeding “or not at all.” 357 U.S. at 336. The court of

appeals therefore should not have entertained respondents’ collateral attack on petitioner’s authority to execute the terms of the FERC-issued certificate here.

Both these errors warrant this Court’s review. As

the court of appeals itself recognized, if permitted to

8

stand, the court’s decision threatens to significantly disrupt FERC’s ability to administer the Nation’s naturalgas supply. The court’s jurisdictional error provides no

reason to permit that erroneous decision to stand. And

contrary to respondents’ assertion, neither does the fact

that, in the more-than-70-year history of Section 717f(h),

the court below is the first appellate court to discover

an unwritten exception for State-owned property. The

petition for a writ of certiorari should be granted.

A. The Court Of Appeals’ Decision Is Incorrect

1. As a threshold matter, the court of appeals lacked

jurisdiction to entertain respondents’ challenge to petitioner’s authority to acquire by eminent domain the

property rights necessary to build the FERC-approved

natural-gas pipeline. The certificate of public convenience and necessity expressly provided for petitioner’s

exercise of eminent domain for that purpose. Any challenge to petitioner’s authority to execute those terms

must be brought, if at all, through a challenge to the

certificate itself, not through a collateral attack like the

one below.

The NGA provides that a certificate of public convenience and necessity issued by FERC is reviewable in the

D.C. Circuit or the circuit in which the natural-gas company has its principal place of business. 15 U.S.C.

717r(b). To obtain judicial review, a party to the administrative proceeding must first seek rehearing from

FERC, then file a petition for review in the court of appeals within 60 days of FERC’s decision on the rehearing petition. Ibid. “Upon the filing of such petition such

court shall have jurisdiction, which upon the filing of the

record with it shall be exclusive, to affirm, modify, or

set aside such order in whole or in part.” Ibid.

9

In City of Tacoma, supra, this Court interpreted the

Federal Power Act’s substantively identical judicialreview provision, 16 U.S.C. 825l, to preclude landowners from collaterally attacking in other proceedings the

licensee’s authority to acquire the necessary property.

When the State of Washington responded to a subsequent state proceeding brought to finance the federally

licensed project by asserting that the Commission could

not authorize a licensee to condemn the State’s fish

hatchery, this Court explained that, “upon judicial review of the Commission’s order, all objections to the order, to the license it directs to be issued, and to the legal

competence of the licensee to execute its terms, must be

made in the Court of Appeals or not at all.” City of Tacoma, 357 U.S. at 336.

Section 717r(b) of the NGA likewise bars respondent’s collateral attack in this eminent-domain proceeding. FERC has authorized construction of an instrumentality of interstate commerce—a pipeline—at a

specified location. Slip op. 2-16. FERC’s order states

that upon issuance of the certificate, petitioner will have

authority “to acquire the necessary land or property to

construct the approved facilities by exercising the right

of eminent domain.” Id. at 17. And Section 717r(b) vests

exclusive jurisdiction to review that order in an appropriate court of appeals. As in City of Tacoma, respondents are thus required to raise “all objections * * * to

the legal competence of [petitioner] to execute” the certificate’s terms—including the authority to acquire by

eminent domain any parcels of land included in the pipeline route—in such a review proceeding “or not at all.”

357 U.S. at 336.

As one court of appeals put it: “Exclusive means exclusive, and the Natural Gas Act nowhere permits an

10

aggrieved party otherwise to pursue collateral review of

a FERC certificate in state court or federal district

court.” American Energy Corp. v. Rockies Express

Pipeline LLC, 622 F.3d 602, 605 (6th Cir. 2010); see

Adorers of the Blood of Christ v. FERC, 897 F.3d 187,

195 (3d Cir. 2018). That includes review in condemnation proceedings expressly contemplated by the certificate and initiated under its authority.

Because the Section 717r(b) question goes to the

court of appeals’ jurisdiction, this Court has an obligation to consider it, even though no party has previously

raised it. See Gonzalez v. Thaler, 565 U.S. 134, 141

(2012). And the court of appeals’ erroneous consideration of respondents’ collateral attack on a certificate of

public necessity and convenience outside the exclusive

review scheme of the NGA provides ample ground to

vacate the decision below.

2. In addition to erroneously considering the merits

of respondents’ challenge, the court of appeals erred in

resolving that challenge. As the text, structure, and

history of the NGA make clear, Section 717f(h) authorizes certificate holders to acquire State-owned property

necessary for constructing a FERC-approved interstate pipeline.

a. The plain text of Section 717f(h) authorizes any

holder of a certificate of public convenience and necessity to obtain by eminent domain the rights of way

needed to construct and operate a federally authorized

interstate pipeline. On its face, that authority extends

to any property “necessary” for the “construct[ion], operat[ion], and maint[enance]” of the pipeline, 15 U.S.C.

717f(h), without regard to whether a State claims any

possessory or non-possessory interest. “[T]his Court

may not narrow a provision’s reach by inserting words

11

Congress chose to omit.” Lomax v. Ortiz-Marquez, 140

S. Ct. 1721, 1725 (2020). The Court’s “duty [is] to respect not only what Congress wrote but, as importantly,

what it didn’t write.” Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1900 (2019) (plurality opinion).

Reading the words of the statute “in their context

and with a view to their place in the overall statutory scheme,” Parker Drilling Mgmt. Servs., Ltd. v.

Newton, 139 S. Ct. 1881, 1888 (2019) (citation omitted),

reinforces that conclusion. The NGA provides the sole

mechanism through which the federal government determines whether and where pipelines and other facilities needed for interstate transportation of natural gas

will be built. Those decisions are at the core of the federal government’s authority to regulate the “channels”

and “instrumentalities” of interstate commerce. United

States v. Morrison, 529 U.S. 598, 609 (2000) (citation

omitted); see U.S. Const. Art. I, § 8, Cl. 3. Nothing in

the NGA purports to limit FERC’s authority to site interstate natural-gas projects on land owned by a State.

And contrary to the Third Circuit’s suggestion (Pet.

App. 31), Section 717f(h) supplies the only authority to

overcome any barriers to implementing those decisions

created by holdout property owners, by providing for

the certificate holder to exercise any necessary eminent

domain. 2

Respondents’ suggestion (Br. in Opp. 19) that FERC’s authority

to site an interstate pipeline “implied[ly]” authorizes FERC to acquire the necessary property by eminent domain is implausible in

light of Section 717f(h)’s express delegation. See 170 FERC

¶ 61,064, 61,497-61,499; see also id. at 61,503 n.1 (Glick, Comm’r, dissenting).

2

12

In this context, the lack of any express carve-out for

State-owned land in Section 717f(h) is particularly instructive. Congress should not lightly be assumed to

have designed a system that vests FERC with the

power to authorize the construction of an interstate

pipeline through a specifically approved corridor, including through State-owned parcels, while simultaneously and silently withholding from the party granted

the certificate of public convenience and necessity the

authority necessary to overcome a State’s objection to

such a plan.

The lack of any State-owned property exception to

Section 717f(h) is confirmed by the existence of such exceptions in other statutes delegating federal eminentdomain power. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). Most prominently, Section 21 of the FPA similarly authorizes private entities that have obtained a license from FERC to

acquire by eminent domain the property rights “necessary to the construction, maintenance, or operation of

any dam, reservoir, [or] diversion structure.” 16 U.S.C.

814. In 1947, Congress modeled Section 717f(h) on that

earlier-enacted provision using wording that “follow[ed]

substantially” the predecessor’s. Senate Report 1. In

1992, however, Congress amended the FPA provision,

withdrawing from licensees the power to condemn “any

lands or other property that, prior to [October 24, 1992],

were owned by a State or political subdivision thereof

and were part of or included within any public park, recreation area or wildlife refuge established under State

or local law.” Pub. L. No. 102-486, Tit. XVII, § 1701(d),

106 Stat. 3009. That amendment is instructive in two

respects.

13

First, it demonstrates that Congress understood the

then-existing wording of the FPA’s eminent-domain

provision—which was materially identical to the wording of Section 717f(h)—to authorize condemnation of

State-owned land. Otherwise, there would have been no

need to exempt certain types of State-owned property.

See H.R. Rep. No. 474, 102d Cong., 2d Sess. Pt. 8, at

99-100 (1992) (federal eminent-domain power under

FPA “includes the power to condemn lands owned by

States”).

Second, the 1992 FPA amendment demonstrates

that Congress knows how to exempt State-owned property from general federal eminent-domain authority if

it intends to do so. See Department of Homeland Sec.

v. MacLean, 574 U.S. 383, 394 (2015); see also, e.g.,

Pub. L. No. 93-496, § 6, 88 Stat. 1528-1530 (authorizing

Amtrak to acquire by eminent domain interests in property “necessary to provide intercity rail passenger service,” except “property of a railroad or property of a

State or political subdivision thereof or of any other

government agency”); Pub. L. No. 89-774, 80 Stat. 13501351 (authorizing Washington Metropolitan Transit Authority to acquire property by condemnation “except

property owned by,” among other entities, state signatories to the governing compact). Yet Congress did not

create a comparable exemption to Section 717f(h) in

1992, and it has not since. 3

The court of appeals dismissed (Pet. App. 28 n.20) the relevance

of the 1992 amendment, on the ground that it was enacted during a

seven-year period in which this Court’s precedent held that Congress could abrogate state sovereign immunity pursuant to its Commerce Clause power. But the FPA and NGA delegate federal eminent domain authority; they do not purport to abrogate state sovereign immunity. And in any event, the court of appeals’ reasoning

3

14

b. The court of appeals declined to interpret Section

717f(h) according to its plain text primarily based on its

“doubt that the United States can delegate its exemption from state sovereign immunity to private parties.”

Pet. App. 26-27. It reasoned that the federal government’s “ability to condemn State land” was actually “the

function of two separate powers: the government’s eminent domain power and its exemption from Eleventh

Amendment immunity.” Id. at 12. Although the court

agreed that the NGA validly delegates the former, in

light of its constitutional doubts, the court declined to

find a delegation of the latter. Id. at 3, 26-30. That reasoning is misguided.

As an initial matter, the court of appeals erred in

drawing a sharp distinction between the government’s

authority to exercise eminent domain and the authority

to file a condemnation action. This Court has not previously made such a distinction. Cf. Georgia v. City of

Chattanooga, 264 U.S. 472, 479-480, 482 (1924) (Because

State-owned land was subject to the power of eminent

domain, the State could be “made a party to condemnation proceedings.”). And it makes little sense. Initiating a condemnation action merely effectuates the right,

validly conferred through delegation of the power of

eminent domain, to acquire title to land that the owner

does not wish to sell and provides a mechanism for the

delegee to pay just compensation if it cannot reach

agreement with the owner.

More fundamentally, the court of appeals erred in

suggesting any constitutional impediment to Section

717f(h). To be sure, “States entered the federal system

cannot explain other instances in which Congress has expressly

withheld power to condemn State-owned lands from a delegation of

federal eminent domain outside that narrow time period.

15

with their sovereignty intact,” Alden v. Maine, 527 U.S.

706, 713 (1999) (citation omitted)—an “integral component” of which is “immunity from private suits,” Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1493 (2019) (citation omitted). “[A]s the Constitution’s structure, its

history, and the authoritative interpretations by this

Court make clear,” States “retain today” the same immunity from suit they “enjoyed before the ratification

of the Constitution.” Alden, 527 U.S. at 713. A State is

thus generally not “subject to suit in federal court unless it has consented to suit, either expressly or in the

plan of the convention.” Blatchford v. Native Village,

501 U.S. 775, 779 (1991) (internal quotation marks omitted). Giving effect to the plain terms of Section 717f(h),

however, would not subject States to any suit to which

they did not consent “in the ‘plan of the convention.’ ”

Ibid. (citation omitted).

There is no question that the States consented in the

plan of the convention to suits brought by the federal

government. United States v. Texas, 143 U.S. 621, 646

(1892). And it is common ground that the eminentdomain power granted to the federal government includes the power to acquire property owned by a State.

See Pet. 32; Br. in Opp. 18-19; see also Oklahoma ex rel.

Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 511-512

(1941). The only question, then, is whether the States’

consent to federal condemnation suits against Stateowned land includes consent to such suits brought by

private entities that have been delegated the federal

power of eminent domain. The answer is yes.

The power of eminent domain has been understood

since before the Founding as a sovereign power that

may be delegated to private entities for projects that

the sovereign deems in the public interest. Colonial

16

governments, for example, passed so-called Mill Acts,

which authorized land to be taken or inundated for the

construction and maintenance of mills in light of the

public need for the grain produced. In the first Mill Act

in 1667, Virginia authorized any landowner willing to

erect a mill and possessing land on one side of a creek

to invoke the authority of the county court to obtain

rights to land on the other side from any owner refusing

to sell. 1667 Va. Mill Act, reprinted in William Waller

Hening, Act IV, 2 Stat. 260-261 (R. & W. & G. Bartow

eds., 1823). Similar statutes were enacted prior to ratification and in the early years of the Republic in at least

18 other States. See Head v. Amoskeag Mfg. Co., 113

U.S. 9, 16-17 & n.* (1885); see also Kelo v. New London,

545 U.S. 469, 512 (2005) (Thomas, J., dissenting) (describing these laws as early examples of “States employ[ing] the eminent domain power”).

Moreover, “in most, if not all, of the colonies,” other

statutes authorized the exercise of eminent domain for

the construction of public and private roadways. 1 Nichols on Eminent Domain § 1.22[7] (2020); see Kelo, 545

U.S. at 513 (Thomas, J., dissenting). In Pennsylvania,

for example, any person could apply to a justice of the

peace for a “road to be laid out from or to the plantation

or dwelling-place of any person or persons to or from

the highway.” 1735 Pa. Highway Act, reprinted in 4

James T. Mitchell & Henry Flanders, The Statutes at

Large of Pennsylvania § 1, at 296-297 (Clarence M.

Busch ed. 1897). If “a road shall be found necessary,” it

would be laid out and recorded as “a common road or

cartway, as well for the use and conveniency of the person or persons” who requested it, with payment made

by those same persons to any property owner whose

“improved ground” was taken. Id. §§ 1-2, at 297-298.

17

Such provisions continued after ratification. “In the

nineteenth century, every state in the union delegated

the power of eminent domain to turnpike, bridge, canal,

and railroad companies.” Abraham Bell, Private Takings, 76 U. Chi. L. Rev. 517, 545 (2009). Congress too

delegated the power of eminent domain to private actors in like circumstances from its earliest days. In

1809, for example, Congress authorized a corporation to

build a turnpike through Alexandria (then a part of the

District of Columbia) and to condemn property as

needed to construct the project. See Act of Mar. 3, 1809,

ch. 31, § 7, 2 Stat. 541-542. Throughout the nineteenth

century, Congress authorized railroad companies to

condemn land across the territories. See, e.g., Act of

Mar. 2, 1831, ch. 85, 4 Stat. 477; Act of Feb. 18, 1888, ch.

13, § 3, 25 Stat. 36-37. And since 1876, when this Court

set to rest any doubts that the federal government’s

power of eminent domain may be exercised within state

boundaries, see Kohl v. United States, 91 U.S. 367, 371372 (1876), Congress has regularly delegated that

power to private companies for the construction of

bridges, energy infrastructure, and other projects that

Congress deems in the public interest. See, e.g., Act of

July 11, 1890, ch. 669, § 4, 26 Stat. 269-270 (incorporating and authorizing company to condemn land needed

to build bridge across Hudson River); General Bridge

Act of 1946, ch. 753, Tit. V, § 509, 60 Stat. 849 (authorizing corporations to condemn property for building

bridges between two or more States); see p. 13, supra.

In light of this long unbroken history, there can be

little doubt that States would have understood at the

Founding that the authority to acquire property by eminent domain—and the institution of legal proceedings

18

necessary to effect that acquisition—may be delegated

to a private entity.

c. The court of appeals offered (Pet. App. 14) three

reasons to doubt that the United States could delegate

the authority to bring condemnation actions against

state property interests. None is persuasive.

First, the court of appeals found (Pet. App. 14) “no

support in the caselaw” for such a delegation. But the

absence of case law is not enough to establish unconstitutionality. If anything, given the long history of such

provisions in the NGA and other statutes, the dearth of

decisions prohibiting or even seriously questioning

their application to state property interests is evidence

that no constitutional concerns exist. Cf. Chiafalo v.

Washington, 140 S. Ct. 2316, 2326 (2020); NLRB v. Noel

Canning, 573 U.S. 513, 525 (2014); Dames & Moore v.

Regan, 453 U.S. 654, 686 (1981).

This Court’s decisions in Blatchford and Vermont

Agency of Natural Resources v. United States ex rel.

Stevens, 529 U.S. 765 (2000), are not to the contrary.

Those decisions expressed skepticism about the federal

government’s ability to delegate its exemption from

state sovereign immunity to private parties for the purpose of enforcing the law. See Blatchford, 501 U.S. at

785-786; Stevens, 529 U.S. at 787. But delegation of the

government’s authority to enforce the law and impose

monetary liability on States presents distinct concerns

that do not arise with respect to the delegation of the

right of eminent domain, exercised here with approval

by FERC of the parcels to be acquired, where the purpose of the proceeding is to determine the amount of

compensation to be paid to the State. See, e.g., Alden,

527 U.S. at 750 (“Private suits against nonconsenting

19

States—especially suits for money damages—may

threaten the financial integrity of the States.”).

Second, the court of appeals expressed (Pet. App. 1718) concerns about political accountability. To the extent such concerns could overcome the history of

such provisions, however, the NGA stays well within

permissible bounds. Although it is the certificate holder

that actually files the condemnation action, it is FERC

that makes the controlling decision that State-owned

land (like other specified land) shall be included in the

pipeline route and thus (if necessary) subject to eminent

domain through a condemnation action. See 15 U.S.C.

717f(e). Moreover, in seeking a certificate, pipeline operators are required to make a “good faith effort to notify all affected landowners.” 18 C.F.R. 157.6(d). Those

property owners, including the State, may object to the

route and to the possible need to acquire their property

by eminent domain before any siting decision is made,

and may invoke the jurisdiction of an Article III court

to challenge the inclusion of their land and the corresponding delegation of the eminent-domain authority to

acquire that land.

In addition, FERC is authorized to attach any

“terms and conditions” to its issuance of a certificate of

public convenience and necessity, including conditions

related to the certificate holder’s potential exercise of

eminent domain. See Slip op., App. A, ¶ 4. And even

then, the certificate holder is authorized to bring a condemnation action against State-owned property (or any

property) only where (1) doing so is “necessary” for the

construction, operation, or maintenance of the FERCauthorized interstate pipeline, and (2) the certificate

holder “cannot acquire” the necessary rights by contract or negotiation. 15 U.S.C. 717f(h).

20

To be sure, even given those substantial limitations

on the certificate holders’ authority, the condemnation

proceeding is not an entirely mechanical exercise. See

Pet. App. 18. But FERC’s control of siting ensures “the

exercise of political responsibility for each [condemnation] suit” in a manner that “is absent from a broad delegation to private persons to sue nonconsenting States”

to enforce the law. Alden, 527 U.S. at 755-756. Respect

for States’ sovereignty does not compel this Court to

prohibit Congress—acting at the core of its Commerce

Clause power and drawing upon a long history in the

United States of delegating to private entities the right

of eminent domain to construct similar infrastructure to

serve the public—from relying on private entities to implement that federal determination.

Third, the court of appeals appeared to believe (Pet.

App. 20) that it could not recognize the delegability of

the federal government’s eminent-domain authority

without recognizing the delegability of an exemption

from Eleventh Amendment immunity for any type of

suit. But as explained above, that concern is misplaced.

Delegating the sovereign power of eminent domain has

a history distinct from vesting private persons with the

power to enforce the law and impose monetary liability,

and the latter presents distinct concerns not present in

the exercise of eminent domain under the NGA.

B. The Court Of Appeals’ Decision Warrants Review

1. The court of appeals’ errors warrant this Court’s

review. As the court of appeals itself recognized (Pet.

App. 30), the decision below will have significant practical effects on FERC’s ability to coordinate the Nation’s

natural-gas supply. If permitted to stand, the decision

below will threaten to enable States to functionally nullify FERC’s pipeline siting decisions whenever they

21

would affect either land owned by a State in fee or private land in which a State asserts a non-possessory

interest—potentially even when the State obtains the

land or interest after FERC has approved the pipeline

route. 170 FERC ¶ 61,064, 61,499-61,500.

It is common for pipelines to cross lands in which a

State may hold (or readily acquire) some form of interest. See Pet. 32; 170 FERC at 61,500 & n.228 (noting

that New Jersey claims a property interest in more than

1300 square miles, more than 15% of the land within

that State). Requiring all interstate natural-gas pipelines to be re-routed (if possible) over exclusively private land would significantly restrict FERC’s ability to

approve those projects, pose a substantial risk of increasing the costs and environmental impacts of the Nation’s natural-gas infrastructure, and threaten abandonment of some projects that FERC would otherwise find

to be in the public interest. 170 FERC at 61,500 n.221.

Granting such veto power to the States would be directly at odds with the NGA’s general purpose of ensuring a reliable and affordable interstate supply of natural

gas, and the purpose of the eminent-domain provision

in particular. See pp. 1-4, supra. As Congress recognized when adding the provision, if a State may stand in

the way of an interstate natural-gas pipeline’s ability to

acquire the requisite property by eminent domain, “it is

obvious that the orders of [FERC] may be nullified,”

undermining the “very objectives of the Natural Gas

Act.” Senate Report 3-4.

2. Respondents contend that certiorari is unwarranted because the decision below does not conflict with

a decision of another court of appeals. But the Third

Circuit itself observed, and respondents do not dispute,

that the decision does conflict with the industry’s

22

longstanding reliance on the NGA “to construct interstate pipelines over State-owned land.” Pet. App. 30a;

see 170 FERC at 61,499. Indeed, the district court recognized that New Jersey itself had previously participated in actions brought by pipelines to condemn the

State’s land, without asserting any Eleventh Amendment objection. See Pet. 24; Pet. App. 66 n.30. Given

the importance of the natural-gas industry to the Nation’s economy and well-being, this is not the sort of legal question in which the Court should wait years for

further percolation while the States of Pennsylvania,

New Jersey, and Delaware enjoy a veto over FERC’s

authority to efficiently and effectively manage the

natural-gas supply in those and surrounding States. 4

Nor should the jurisdictional question dissuade the

Court from granting review. Although no party raised

the question below, this Court has the authority and obligation to address it in the first instance. See p. 10, supra. And in the government’s view, the disruptive nature of the court of appeals’ decision on a vital sector of

the economy is too significant to leave it undisturbed. If

the Court agrees that the importance of the issue would

otherwise warrant review, it should not decline certiorari simply because there is an additional, straightforward ground for reversal. The Court should instead

Although respondents suggest that the Fourth Circuit may soon

weigh in on the question presented, the case they identify is also an

appeal from a condemnation proceeding. See Br. in Opp. 7 (citing

Columbia Gas Transmission v. 0.12 Acres of Land, No. 19-2040 (4th

Cir.)). Thus, even if the parties do not settle, see id. at 7 n.2, the

Fourth Circuit will face the same jurisdictional obstacle that should

have precluded the Third Circuit from reaching and resolving the

merits here.

4

23

grant review to consider both the jurisdictional question and, if necessary, the merits.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

DAVID L. MORENOFF

Acting General Counsel

JOHN LEE SHEPHERD, JR.

Director of Legal Policy

ROBERT H. SOLOMON

Solicitor

ANAND R. VISWANATHAN

Attorney

Federal Energy Regulatory

Commission

DECEMBER 2020

JEFFREY B. WALL

Acting Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN D. BRIGHTBILL

ERIC GRANT

Deputy Assistant Attorneys

General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

MICHAEL BUSCHBACHER

RACHEL HERON

Attorneys