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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

MATTHEW R. CHRISTIANSEN

General Counsel

DAVID L. MORENOFF

Deputy General Counsel

ROBERT H. SOLOMON

Solicitor

ANAND R. VISWANATHAN

Attorney

Federal Energy Regulatory

Commission

Washington, D.C. 20426

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

JEAN E. WILLIAMS

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

RACHEL HERON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS 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 this condemnation proceeding to acquire land

in which respondents claim an interest, respondents argued that the NGA did not authorize petitioner to commence the suit against them and, if it did, the Eleventh

Amendment prohibited it. The questions presented are

as follows:

1. Whether the court of appeals properly exercised

jurisdiction over respondents’ challenge to petitioner’s

authority to condemn property that FERC determined

is necessary for the construction of an interstate pipeline, outside of the NGA’s exclusive review scheme for

FERC’s decision.

2. Whether the NGA’s eminent-domain provision,

15 U.S.C. 717f(h), authorizes private entities to initiate

condemnation suits to acquire State-owned 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:

A. Statutory and regulatory background .................... 2

B. The present controversy .......................................... 5

Summary of argument ................................................................. 9

Argument:

I. The court of appeals lacked jurisdiction to

determine whether the NGA authorizes petitioner

to condemn respondents’ property .............................. 11

II. The NGA authorizes a pipeline company to

condemn State-owned property that FERC has

determined is necessary for the construction of

an interstate pipeline ..................................................... 19

A. The text, structure, history, and purpose of

Section 717f(h) amply demonstrate that

certificate holders are authorized to condemn

State-owned property ............................................. 19

B. Principles of state sovereign immunity do not

require a different conclusion ................................ 24

Conclusion ................................................................................... 34

TABLE OF AUTHORITIES

Cases:

Adorers of the Blood of Christ v. FERC,

897 F.3d 187 (3d Cir. 2018), cert. denied,

139 S. Ct. 1169 (2019) ......................................................... 14

Alden v. Maine, 527 U.S. 706 (1999).............................. 25, 33

Allegheny Defense Project v. FERC, 964 F.3d 1

(D.C. Cir. 2020) ................................................................... 19

American Energy Corp. v. Rockies Express Pipeline

LLC, 622 F.3d 602 (6th Cir. 2010) ..................................... 14

(III)

IV

Cases—Continued:

Page

Atlantic Coast Pipeline, LLC, 161 F.E.R.C.

¶ 61,042 (2017) ....................................................................... 4

Best v. Humboldt Placer Mining Co., 371 U.S. 334

(1963) .................................................................................... 30

Blatchford v. Native Village, 501 U.S. 775 (1991) ........ 25, 31

Buckley v. Valeo, 424 U.S. 1 (1976)...................................... 32

Chesapeake & O. Canal Co. v. Union Bank,

5 F. Cas. 570 (C.C.D.C. 1830) ............................................ 27

Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ................. 29

City of Tacoma v. Taxpayers, 357 U.S. 320

(1958) ......................................................... 9, 11, 12, 13, 14, 15

Department of Homeland Sec. v. MacLean,

574 U.S. 383 (2015).............................................................. 21

Department of Transp. v. Association of Am. R.Rs.,

575 U.S. 43 (2015) ............................................................... 32

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000).............................................................. 20

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167 (2000) ........................................ 32

Georgia v. City of Chattanooga, 264 U.S. 472 (1924) ... 30, 31

Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885) .................. 26

Kelo v. New London, 545 U.S. 469 (2005) ........................... 26

Kohl v. United States, 91 U.S. 367 (1876) ............... 25, 28, 30

Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020) ............... 19

Luxton v. North River Bridge Co., 153 U.S. 525

(1894) ........................................................................... 28, 32

Mountain Valley Pipeline, LLC, 161 F.E.R.C.

¶ 61,043 (2017), modified, 172 F.E.R.C. ¶ 61,193

(2020) ...................................................................................... 4

Northern Natural Gas Co., 164 F.E.R.C. ¶ 61,200

(2018) ................................................................................ 15

V

Cases—Continued:

Page

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

313 U.S. 508 (1941).............................................................. 25

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

139 S. Ct. 1881 (2019) ......................................................... 20

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989),

overruled by Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ............................................................... 21

Scudder v. Trenton Delaware Falls Co.,

1 N.J. Eq. 694 (N.J. Ch. 1832) ........................................... 27

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ....... 22

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

(1998) .................................................................................... 16

Stockton v. Baltimore & N.Y.R. Co., 32 F. 9

(C.C.D.N.J. 1887), appeal dismissed, 140 U.S. 699

(1891) ................................................................................ 29

Thunder Basin Coal Co. v. Reich, 510 U.S. 200

(1994) .................................................................................... 17

Transcontinental Gas Pipe Line Co. v. 0.607 Acres

of Land, No. 15-cv-428 (D.N.J. Feb. 23, 2015) .............. 29

Tuscarora Nation of Indians v. Power Auth.,

79 S. Ct. 4 (1958) ................................................................. 18

United States v. Carmack, 329 U.S. 230 (1946) .................. 25

Vermont Agency of Natural Res. v. United States ex

rel. Stevens, 529 U.S. 765 (2000) ........................................ 16

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) ......................................................... 20

Williams Natural Gas Co. v. City of Oklahoma City,

890 F.2d 255 (10th Cir. 1989), cert. denied, 497 U.S.

1003 (1990) ........................................................................... 14

VI

Constitution, statutes, and regulations:

Page

U.S. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) ....................... 21, 34

Art. III .............................................................................. 33

Amend. XI ............................................................... passim

Act of Mar. 3, 1809, ch. 31, § 7, 2 Stat. 541-542 ................... 27

Act of Mar. 2, 1831, ch. 85, 4 Stat. 476 ................................. 28

Act of July 2, 1864, ch. 217, 13 Stat. 365 .............................. 28

Act of July 27, 1866, ch. 278, 14 Stat. 292 ............................ 28

Act of Feb. 18, 1888, ch. 13, § 3, 25 Stat. 36-37 ................... 28

Act of July 11, 1890, ch. 669, § 4, 26 Stat. 269-270 .............. 28

Act of July 24, 1935, ch. 414, § 2, 49 Stat. 496-497 ........... 29

Act of Sept. 7, 1950, ch. 905, § 2, 64 Stat. 771................... 29

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

80 Stat. 1324 ........................................................................ 22

Amtrak Improvement Act of 1974,

Pub. L. No. 93-496, § 6, 88 Stat. 1528 ............................... 22

Electricity Modernization Act of 2005,

Pub. L. No. 109-58, Tit. XII, § 1221(a),

119 Stat. 946 ........................................................................ 22

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

Tit. XVII, § 1701(d), 106 Stat. 3009................................... 21

False Claims Act, 31 U.S.C. 3729 et seq. ............................. 16

Federal Power Act, 16 U.S.C. 791a et seq.:

16 U.S.C. 814 (§ 21) ................................................... 20, 29

16 U.S.C. 825l........................................ 9, 11, 12, 13, 14, 15

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

60 Stat. 849 .......................................................................... 28

Natural Gas Act, 15 U.S.C. 717 et seq. .............................. 1, 2

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

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

VII

Statutes and regulations—Continued:

Page

15 U.S.C. 717f(c) ................................................................ 4

15 U.S.C. 717f(c)(1)(A) ................................................ 2, 18

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

15 U.S.C. 717f(e) ...................................................... 2, 3, 33

15 U.S.C. 717f(e)(1)(B) ...................................................... 3

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

15 U.S.C. 717r(a) ............................................................... 4

15 U.S.C. 717r(b) .................................................... passim

15 U.S.C. 717r(c) .............................................................. 18

Act of Feb. 3, 1790, ch. 3, 1790 N.Y. Laws 106 ................... 28

Act of Mar. 1794, 1794 R.I. Acts & Resolves 11 ................. 28

1735 Pa. Highway Act, ch. 342, reprinted in

4 James T. Mitchell & Henry Flanders,

The Statutes at Large of Pennsylvania (1897):

§ 1 ..................................................................................... 26

§§ 1-2 ................................................................................. 27

1667 Va. Mill Act, Act IV, reprinted in 2 William

Waller Hening, The Statutes at Large (1823) .................. 26

N.J. Stat. Ann. (West):

§ 13:8A-37(d) (2003) ......................................................... 24

§ 13:8A-40 (2003) ............................................................. 24

§ 13:8A-40(a) (2003) ......................................................... 24

§ 20:3-19 (1997) ................................................................ 24

7 C.F.R. Pt. 1468 .................................................................... 24

18 C.F.R. Pt. 157:

Subpt. A .............................................................................. 2

Section 157.6(d) ................................................ 3, 15, 33

Section 157.10............................................................... 3

Section 157.11............................................................... 3

Section 157.14(a)(6) ................................................... 15

VIII

Regulations—Continued:

Page

Section 157.14(a)(6)(i) .................................................. 3

Subpt. F:

Section 157.203 ............................................................. 4

Miscellaneous:

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

517 (2009) ............................................................................. 27

Certification of New Interstate Natural Gas

Pipeline Facilities, 88 F.E.R.C. ¶ 61,227 (1999),

clarified, 90 F.E.R.C. ¶ 61,128 (2000) ................................. 3

H.R. Rep. No. 474, 102d Cong., 2d Sess. Pt. 8 (1992) ........ 21

Limiting Authorizations to Proceed With

Construction Activities Pending Rehearing,

171 F.E.R.C. ¶ 61,201 (2020), modified on reh’g,

174 F.E.R.C. ¶ 61,050 (2021) ............................................. 18

Robert H. Nelson, State-Owned Lands in the

Eastern United States (2018), https://

www.perc.org/wp-content/uploads/2018/03/

PERC-ELR-web.pdf.......................................................... 23

1 Nichols on Eminent Domain (3d ed. 2020) .................... 26

PennEast Pipeline Project Maps, https://

go.usa.gov/x7tTn (last visited Mar. 8, 2021)....................... 3

S. Rep. No. 429, 80th Cong., 1st Sess. (1947)................ 20, 23

Harry N. Scheiber, Property Law, Expropriation,

and Resource Allocation by Government,

33 J. Econ. Hist. 232 (1973)................................................ 27

Henry Stanberry, Acquisition of Property for

Public Use, 12 Op. Att’y Gen. 173 (1867) ....................... 28

Zach Wright, Note, Siting Natural Gas Pipelines

Post-PennEast: The New Power of State-Held

Conservation Easements, 105 Minn. L. Rev. 1053

(2020) .................................................................................... 24

In the Supreme Court of the United States

No. 19-1039

PENNEAST PIPELINE COMPANY, LLC, PETITIONER

v.

STATE OF NEW JERSEY, ET AL.

ON 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 case presents the question whether the Natural

Gas Act (NGA), 15 U.S.C. 717 et seq., authorizes the

holder of a certificate of public convenience and necessity to build an interstate natural-gas pipeline to initiate

a condemnation action to acquire State-owned property

necessary for the construction of the pipeline. The

United States has a substantial interest in the resolution of that question, as the Federal Energy Regulatory

Commission (FERC) is responsible for administering

the NGA and granting such certificates. At the Court’s

invitation, the United States filed a brief as amicus curiae at the petition stage of this case.

(1)

2

STATEMENT

A. Statutory And Regulatory Background

1. The Natural Gas Act, 15 U.S.C. 717 et seq., declares that federal regulation of the transportation and

sale of natural gas in interstate commerce “is necessary

in the public interest,” 15 U.S.C. 717(a), and sets forth

a detailed regulatory scheme to that end. As part of that

scheme, the NGA vests FERC with primary authority

to determine whether additional natural-gas pipelines

and related facilities are needed, where they should be

located, and whether and when they may be abandoned.

See 15 U.S.C. 717f.

As most relevant here, FERC is authorized 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). “No natural-gas company * * *

shall engage in the transportation or sale of natural gas,

subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities

therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to

such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations.” 15 U.S.C. 717f(c)(1)(A).

2. To obtain a certificate of public convenience and

necessity, a pipeline operator must submit an application to FERC, containing such information and providing such notice to interested parties “as the Commission

shall, by regulation, require.” 15 U.S.C. 717f(d); see

18 C.F.R. Pt. 157, Subpt. A. The Commission’s regulations require the applicant to identify, among other

things, the proposed interstate pipeline’s “[l]ocation,

3

length, and size,” 18 C.F.R. 157.14(a)(6)(i), and 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); see

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

x7tTn. Any person seeking to participate in the certificate proceedings may move to intervene and may protest the application. 18 C.F.R. 157.10.

Following public hearings, FERC “performs a flexible balancing process” to determine whether the proposed project would serve the public interest. Certification of New Interstate Natural Gas Pipeline Facilities, 88 F.E.R.C. ¶ 61,227, at 61,743 (1999), clarified,

90 F.E.R.C. ¶ 61,128 (2000); see 15 U.S.C. 717f(e)(1)(B)

and (f); 18 C.F.R. 157.11. Among the factors the Commission considers are the proposal’s likely “economic,

operational, and competitive benefits,” potential environmental impacts, the effect on the applicant’s existing

customers, the interests of competing existing pipelines

and their customers, and “the interests of landowners

and surrounding communities,” as well as the applicant’s “efforts to eliminate or minimize any adverse

effects the project might have” on those interests.

88 F.E.R.C. at 61,743-61,747.

If FERC determines that, in light of those considerations, the applicant is “able and willing properly” to

complete the project and that the project “is or will be

required by the present or future public convenience

and necessity,” FERC issues a certificate authorizing

the project’s construction, attaching “such reasonable

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

agency practice, those terms and conditions include the

specific locations authorized for construction of the

4

pipeline. See, e.g., J.A. 170 (issuing certificate “as described and conditioned herein, and as more fully described in the application”); Mountain Valley Pipeline,

LLC, 161 F.E.R.C. ¶ 61,043, at 61,337 (2017) (same),

modified, 172 F.E.R.C. ¶ 61,193 (2020); Atlantic Coast

Pipeline, LLC, 161 F.E.R.C. ¶ 61,042, at 61,279 (2017)

(similar). 1

The NGA authorizes the certificate’s holder to undertake the project on the terms imposed; if the certificate holder is unable to acquire the “necessary” property by voluntary agreement, it may acquire the property “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.” 15 U.S.C. 717f(h); see 15 U.S.C. 717f(c).

3. Any “person, State, municipality, or State commission aggrieved by an order issued by the Commission” granting or denying a certificate of public convenience and necessity in a proceeding in which it is a party

may obtain judicial review of the Commission’s order

by, first, seeking rehearing before the Commission and,

then, filing a petition for review in the D.C. Circuit or

any circuit in which the certificate holder is located or

has its principal place of business. 15 U.S.C. 717r(a) and

(b). “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.” 15 U.S.C. 717r(b). “The

judgment and decree of the court, affirming, modifying,

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

5

or setting aside, in whole or in part, any such order of

the Commission, shall be final, subject to review by the

Supreme Court of the United States upon certiorari or

certification.” Ibid.

B. The Present Controversy

1. a. In 2015, petitioner applied to FERC for a certificate of public convenience and necessity authorizing

construction of 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, including consideration of protests from respondents and others, FERC determined

that the public convenience and necessity required approval of the proposed pipeline along the route proposed and granted the certificate, subject to various

conditions. J.A. 35-200. Then-Commissioner (nowChairman) Glick dissented. J.A. 206-211.

In determining whether the project met the publicconvenience-and-necessity standard, FERC balanced

the benefits of the new pipeline against the potential adverse effects on other pipelines, consumers, landowners, and surrounding communities, including “the unneeded exercise of eminent domain.” J.A. 43; see J.A.

42-59. The Commission recognized that petitioner had

been unable “to reach easement agreements with a

number of landowners.” J.A. 58. But it found that petitioner had “taken sufficient steps to minimize adverse

impacts,” including by holding “over 200 meetings with

public officials, as well as 15 ‘informational sessions’ for

impacted landowners,” and “incorporat[ing] 70 of 101

identified route variations into its final proposed pipe-

6

line route for various reasons, including landowner requests, community impacts, and the avoidance of sensitive resources.” J.A. 58-59.

The Commission rejected certain commenters’ suggestions that it would be “inappropriate for [petitioner]

to obtain property for the project through eminent domain” because it is a for-profit company. J.A. 59. The

agency explained that once FERC finds that the construction and operation of a proposed interstate pipeline is in the public interest, Section 717f(h) “authorizes

a certificate holder to acquire the necessary land or

property to construct the approved facilities by exercising the right of eminent domain” if it cannot reach an

agreement with the landowner, and that “Congress

made no distinction between for-profit and non-profit

companies.” J.A. 60.

b. Respondents and other parties to the FERC proceeding sought rehearing of the Commission’s order,

which the Commission denied. J.A. 213-335. In so doing, the Commission rejected a series of additional arguments about petitioner’s eminent-domain authority.

The Commission explained that the NGA does not require a “public use” finding, beyond a determination

that the project itself is in the public interest, before a

certificate holder can exercise eminent domain. J.A.

235-236. It rejected respondents’ argument that the authorization of eminent domain was “premature” because the pipeline route could conceivably change, with

Commission approval, throughout the project. J.A. 238239. And it declined to limit petitioner’s exercise of eminent domain to land necessary for the completion of

further environmental assessments that FERC had required as conditions on the certificate. J.A. 239-240.

Commissioner Glick dissented. J.A. 344-362.

7

c. Respondents and others subsequently 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 May 9, 2018). The Commission filed a certified index to the record in those proceedings on October 24, 2018. See ibid. Those consolidated petitions are being held in abeyance pending disposition of this case. See ibid.

2. 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 and appointed a

panel of special masters to determine just compensation. Id. at 34-102.

The court of appeals reversed. Pet. App. 1-31. In the

court’s view, “the federal government’s ability to condemn State land * * * is, in fact, the function of two

separate powers: the government’s eminent domain

power and its exemption from Eleventh Amendment

immunity.” Id. at 12. The court concluded that the

NGA validly delegated to certificate holders the federal

power of eminent domain, but it expressed “deep doubt”

that Congress could constitutionally delegate the “separate and distinct” “power to hale [a] State[ ] into federal court” for the purpose of exercising that eminentdomain authority. Id. at 2-3, 26.

Ultimately, the court of appeals declined to decide

that constitutional question, resting its decision instead

on its conclusion that Congress in the NGA had not authorized petitioner to file a condemnation action against

a State. Based on its constitutional doubt, the court reasoned that it would not recognize such authorization

8

without something akin to the type of clear statement

this Court has required for an abrogation of state sovereign immunity. Pet. App. 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 the court reasoned that, even if FERC lacked

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

3. a. Following the court of appeals’ decision, FERC

issued a declaratory order, explaining the agency’s position that Section 717f(h) includes the authority to acquire by eminent domain all property necessary to construct an authorized pipeline, whether owned by a private party or a State. J.A. 363-436. The Commission

stated that the agency lacked statutory authority to itself condemn property (State-owned or otherwise) under the NGA. J.A. 419-423. And it found that, absent

another mechanism for obtaining the necessary property rights, the Third Circuit’s opinion could have “profoundly adverse impacts on the development of the nation’s interstate natural gas transportation system.”

J.A. 426. Commissioner Glick dissented. J.A. 440-459.

b. The Commission subsequently denied rehearing of

its declaratory order. J.A. 460-491. In addition to affirming the order, it determined that respondent’s collateral

attack on the Commission’s NGA certificate order in an

eminent-domain proceeding was no “more acceptable

9

than other types of collateral attack on certificate orders that the federal courts routinely dismiss.” J.A. 485

n.104 (citation omitted). Commissioner Glick dissented.

J.A. 492-502.

SUMMARY OF ARGUMENT

I. The court of appeals lacked jurisdiction to determine whether the NGA authorizes petitioner to condemn respondents’ property. A certificate of public

convenience and necessity issued by FERC is reviewable only on direct review in a court of appeals. The NGA

provides “exclusive” jurisdiction to the court of appeals

conducting that direct review to “affirm, modify, or set

aside” the Commission’s order “in whole or in part,” and

makes that court’s judgment “final,” subject to review

only by this Court. 15 U.S.C. 717r(b). This Court has

interpreted the Federal Power Act’s substantively identical judicial-review provision, 16 U.S.C. 825l, to preclude

all litigation of “issues inhering in the controversy” outside of the direct-review scheme, including whether the

licensee is authorized to take State-owned property.

City of Tacoma v. Taxpayers, 357 U.S. 320, 336 (1958).

Section 717r(b) likewise precluded the court of appeals

from entertaining respondents’ attack on petitioner’s

authority to condemn their property in this proceeding.

II. A. In any event, the NGA authorizes certificate

holders to condemn State-owned property that FERC

has determined is necessary for the construction of an

interstate pipeline. The text of Section 717f(h) authorizes certificate holders to acquire all property necessary for the federally approved project, without exception for property in which a State may claim an interest.

Nor can the statute be interpreted to contain an unwritten exception, as demonstrated by the fact that no other

provision of federal law would permit certificate holders

10

or FERC to overcome a State’s holdout; by the existence of express exceptions for State-owned property in

other delegations of federal eminent domain; and by the

history and purpose of Section 717f(h), which was specifically intended to prevent States from obstructing

the use of eminent domain for FERC-approved interstate pipelines.

B. Principles of state sovereign immunity do not require a different conclusion. While the Eleventh Amendment precludes a State from being subject to suit, absent its consent, the States consented to suits like this

one in the plan of the Convention. The right of eminent

domain was well-known at the Founding. As the Court

has long recognized, the Constitution conferred that authority on the federal government, including the authority to take State-owned land, for projects within the

government’s enumerated powers. And since before

the Founding through the present day, the right of eminent domain has been understood to encompass authority for private parties to exercise the right for projects the sovereign deems in the public interest. In light

of the long unbroken history of colonial, state, and federal delegations of such authority, there is no basis to

conclude that, when the States granted the federal government the eminent-domain power in the plan of the

Convention, they silently retained the right to veto delegations of its exercise, as long as they could first obtain

any property interest in the land at issue.

11

ARGUMENT

I. THE COURT OF APPEALS LACKED JURISDICTION

TO DETERMINE WHETHER THE NGA AUTHORIZES

PETITIONER TO CONDEMN RESPONDENTS’ PROPERTY

The certificate of public convenience and necessity

FERC issued to petitioner expressly provides for petitioner’s exercise of eminent domain over respondents’

property. The NGA provides “exclusive” jurisdiction to

the court of appeals conducting the direct review of that

certificate to “affirm, modify, or set aside” the Commission’s order “in whole or in part,” and makes that court’s

judgment “final,” subject to review only by this Court.

15 U.S.C. 717r(b). Any challenge to petitioner’s ability

to exercise the eminent-domain authority granted by

that certificate therefore must be brought, if at all,

through a challenge to the certificate on direct review.

The courts below lacked jurisdiction to entertain respondents’ challenge to that authority in these collateral proceedings.

A. This Court’s decision in City of Tacoma v. Taxpayers, 357 U.S. 320 (1958), is controlling. In that case,

the Court considered the scope of the materially identical judicial-review provision of the Federal Power Act

(FPA), 16 U.S.C. 825l. The City of Tacoma had applied

for a license under the FPA from FERC’s predecessor,

the Federal Power Commission, to construct a hydroelectric power project on the Cowlitz River, a navigable

water of the United States located in the State of Washington. City of Tacoma, 357 U.S. at 322-324. The

“maps, plans, [and] specifications” accompanying the

City’s application “made clear that,” as part of the project, a fish hatchery owned by the State of Washington

would be inundated. Id. at 324 n.6; see id. at 324-325.

12

The State opposed the license, objecting to the destruction of its “valuable and irreplaceable fish hatchery.”

Id. at 325-326.

Following a public hearing, the Commission issued a

license to the City and denied the State’s request for rehearing. City of Tacoma, 357 U.S. at 326-327. The Ninth

Circuit affirmed the Commission’s order on direct review, and this Court denied certiorari. Id. at 327-328.

While proceedings were pending in the Ninth Circuit, the City commenced an action in Washington state

court to declare valid revenue bonds issued to finance

the project. City of Tacoma, 357 U.S. at 329. The trial

court entered judgment in favor of the State and enjoined the City from constructing the project. Id. at

331. The Supreme Court of Washington affirmed on the

grounds that the City lacked the “power and capacity to

condemn the State’s fish hatchery” as a matter of state

law and that it could not receive that power “from the

license issued to it by the [Commission].” Id. at 332

(brackets and citation omitted).

This Court reversed, holding that the FPA precluded any court from resolving “whether the license issued by the Commission under the Federal Power Act

to the City of Tacoma gave it capacity to act under that

federal license in constructing the project and delegated to it federal eminent-domain power to take, upon

the payment of just compensation, the State’s fish

hatchery,” outside the exclusive review scheme provided by Section 825l. City of Tacoma, 357 U.S. at 333,

341. “It can hardly be doubted,” the Court observed,

that Congress “may prescribe the procedures and conditions under which, and the courts in which, judicial review of administrative orders may be had.” Id. at 336.

The Court reasoned that Section 825l “prescribed the

13

specific, complete and exclusive mode for judicial review of the Commission’s orders” under the FPA by

providing that “any party aggrieved by the Commission’s order may have judicial review” in an appropriate

court of appeals, “which ‘shall have exclusive jurisdiction to affirm, modify, or set aside such order in whole

or in part,’ and that ‘[t]he judgment and decree of the

court, affirming, modifying, or setting aside, in whole or

in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the

United States upon certiorari or certification.’ ” Ibid.

(quoting 16 U.S.C. 825l) (brackets in original).

That language, the Court explained, “necessarily

precluded de novo litigation between the parties of all

issues inhering in the controversy, and all other modes

of judicial review.” City of Tacoma, 357 U.S. at 336.

Thus, “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.” Ibid. “[T]he State may not reserve [any

issue] for another round of piecemeal litigation, by remaining silent on the issue while its action to review and

reverse the Commission’s order was pending in that

court.” Id. at 339.

B. City of Tacoma makes clear that Section 717r(b)

of the NGA likewise precluded the courts below from

entertaining respondents’ collateral attack on petitioner’s authority to execute the Commission’s order

here. Like Section 825l, Section 717r(b) provides that

any party “aggrieved by an order issued by the Commission” may have judicial review in the court of appeals. 15 U.S.C. 717r(b). Like Section 825l, Section

717r(b) provides that the court of appeals shall have

14

“exclusive” jurisdiction “to affirm, modify, or set aside

such order in whole or in part.” Ibid. And like Section

825l, Section 717r(b) provides that “[t]he judgment and

decree of th[at] court, affirming, modifying, or setting

aside, in whole or in part, any such order of the Commission, shall be final,” subject to review only by this

Court. Ibid.

Lower courts have thus correctly interpreted Section 717r(b) to operate in the same manner as Section

825l. As Judge Sutton put it, “[e]xclusive means exclusive, and the Natural Gas Act nowhere permits an 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,

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

187, 195 (3d Cir. 2018) (holding that Section 717r(b)

“foreclosed judicial review” of landowners’ religious

objections to use of their land for a pipeline except

through the exclusive review provisions of the NGA),

cert. denied, 139 S. Ct. 1169 (2019). That includes collateral attacks through the condemnation proceedings

brought under the authority of the Commission’s order.

See Williams Natural Gas Co. v. City of Oklahoma

City, 890 F.2d 255, 264 (10th Cir. 1989), cert. denied,

497 U.S. 1003 (1990).

Respondents’ contention that the NGA does not authorize petitioner to condemn their property “could and

should have been” raised before the Commission and in

the pending direct-review proceedings in the D.C. Circuit. City of Tacoma, 357 U.S. at 339. FERC required

petitioner, in submitting its application, to provide the

precise route its proposed pipeline would follow and to

notify respondents and other property owners through

15

whose property that route would run. 18 C.F.R.

157.6(d), 157.14(a)(6). In evaluating petitioner’s submission, the Commission considered numerous issues concerning the scope and legal validity of the eminentdomain authority that would be granted to petitioner in

its certificate. See, e.g., J.A. 59-60, 234-240. And in issuing the certificate, the Commission expressly stated

that petitioner would have authority “to acquire the necessary land or property to construct the approved facilities by exercising the right of eminent domain.” J.A.

60; see Northern Natural Gas Co., 164 F.E.R.C. ¶ 61,200,

at 62,204 (2018) (“The holder of a certificate of convenience and necessity is expected to obtain all land or other

property necessary to provide its certificated service.”).

Thus, just as Section 825l precluded Washington’s

courts from determining whether the license issued under the FPA authorized the City of Tacoma “to take,

upon the payment of just compensation, the State’s fish

hatchery,” City of Tacoma, 357 U.S. at 333, Section

717r(b) precluded the courts below from deciding

whether the certificate issued under the NGA authorizes

petitioner to condemn respondents’ property. Because

that issue “inher[es] in the controversy” of the certificate proceedings, respondents were required to raise it

in those proceedings “or not at all.” Id. at 336.

C. Respondents’ arguments to the contrary are unavailing. They principally argue (Supp. Br. 2-3) that Section 717r(b) cannot preclude a federal court from considering their assertion of Eleventh Amendment immunity because the Eleventh Amendment is itself “a

limitation on the jurisdiction of Article III courts.” But

that ignores what the court of appeals actually decided

below. Although the court expressed doubt that the

16

Eleventh Amendment would permit Congress to authorize petitioner to condemn respondents’ property, it

ultimately declined to answer that question. See Pet.

App. 27. Instead, the court rested its decision on the

statutory holding that the NGA did not authorize petitioner to bring the action. See id. at 30.

The court of appeals took that course to avoid what

it perceived to be a difficult jurisdictional question under the Eleventh Amendment. See Pet. App. 27 (concluding that “even accepting * * * that the federal government can delegate its exemption from Eleventh

Amendment immunity,” it did not do so in the NGA).

But this Court has already rejected that sort of a “hypothetical jurisdiction” approach in Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 94 (1998) (citation omitted). And in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765

(2000), the Court made clear that the same principle

generally applies in the context of Eleventh Amendment jurisdiction. See id. at 778-780.

While the Stevens Court determined that it nevertheless could resolve whether the False Claims Act,

31 U.S.C. 3729 et seq., “permit[ted] the cause of action

it creates to be asserted against States” before considering “whether the Eleventh Amendment [would] forbid[ ]” it, that was only because there was “no realistic

possibility” in that case that doing so would “expand the

Court’s power beyond the limits that the jurisdictional

restriction has imposed.” 529 U.S. at 779. The same

cannot be said here, where in addition to whatever jurisdictional limits the Eleventh Amendment may impose, but see pp. 24-34, infra, Section 717r(b) imposed

an independent jurisdictional limitation on the courts

below. The court of appeals thus lacked authority to

17

consider whether the NGA authorizes petitioner to file

a condemnation action against State-owned property as

a matter of statutory interpretation in this collateral

proceeding.

Respondents assert (Supp. Br. 3-4) that the Commission has taken the position elsewhere that eminentdomain issues must be litigated in separate proceedings. While the Commission has refused to limit a certificate holder’s eminent-domain authority beyond the

limits imposed by the NGA, including in this case, it has

not refused to consider the scope of that statutory authority in its certification proceedings. In this very

case, the Commission considered several issues related

to the scope of Section 717f(h), including whether the

rights may extend to for-profit companies and whether

the Commission is required to make a separate “public

use” determination under the NGA. J.A. 59-60, 234-240.

Regardless of whether the Commission can or will

impose additional limits or conditions on the eminentdomain authority granted by a certificate, there are

good reasons for Congress to channel such statutory issues into the certificate proceedings and direct judicial

review of those proceedings. Statutory questions about

“parties’ rights and duties” under Section 717f(h) “fall

squarely within the Commission’s expertise.” Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994). Moreover, where, as here, a pipeline operator has been unable to obtain easement agreements for a proposed project, those issues may well affect the Commission’s determination whether the benefits of the project (which

depend on its actually being built) will outweigh any adverse effects, as well as a court of appeals’ review of that

determination.

18

Finally, respondents contend (Supp. Br. 4) that respecting the jurisdictional limits imposed by Section

717r(b) “would yield untenable results,” because pipeline operators often file condemnation actions before

the Commission has resolved requests for rehearing of

the certificate orders on which those condemnation

suits are based. But that argument proves far too much.

After all, petitioner’s ability to file a condemnation action depends not just on the scope of its authority under

Section 717f(h), but on the validity of the entire certificate. 15 U.S.C. 717f(c)(1)(A); see Tuscarora Nation of

Indians v. Power Auth., 79 S. Ct. 4, 6 (1958) (Harlan, J.,

in chambers). Yet Congress has granted the court of

appeals “exclusive” jurisdiction to determine the validity of that certificate, has permitted challengers to seek

such review only upon the Commission’s resolution of

any requests for rehearing, and has provided that, “unless specifically ordered by the Commission,” a request

for rehearing “shall not” stay the Commission’s order.

15 U.S.C. 717r(b) and (c).

The Commission is sensitive to concerns about pipeline operators proceeding with approved projects before rehearing requests have been resolved. In light of

those concerns, it has recently adopted a regulation that

“precludes the issuance of authorizations to proceed

with construction of projects * * * while rehearing of

the initial orders is pending.” Limiting Authorizations

to Proceed With Construction Activities Pending Rehearing, 171 F.E.R.C. ¶ 61,201, at 62,426 (2020), modified on reh’g, 174 F.E.R.C. ¶ 61,050 (2021). If, despite

that limitation, landowners are threatened with irreparable harm by individual condemnation proceedings,

they may seek a stay from the Commission or similar

19

relief from a federal court. See Allegheny Defense Project v. FERC, 964 F.3d 1, 22 (D.C. Cir. 2020) (en banc)

(Griffith, J., concurring). But they may not ignore the

NGA’s careful and exclusive scheme of direct review.

II. THE NGA AUTHORIZES A PIPELINE COMPANY TO

CONDEMN STATE-OWNED PROPERTY THAT FERC

HAS DETERMINED IS NECESSARY FOR THE

CONSTRUCTION OF AN INTERSTATE PIPELINE

Assuming the court of appeals correctly exercised

jurisdiction over respondents’ challenge to petitioner’s

authority to condemn State-owned property, the court

erred in its resolution of that challenge. The text, structure, history, and purpose of the NGA demonstrate that

Section 717f(h) authorizes certificate holders to condemn all property necessary for constructing a FERCapproved interstate pipeline—whether or not a State

claims any interest in such property. Principles of state

sovereign immunity require no different result.

A. The Text, Structure, History, And Purpose Of Section

717f(h) Amply Demonstrate That Certificate Holders

Are Authorized To Condemn State-Owned Property

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

holder of a certificate of public convenience and necessity to obtain the rights of way needed to construct and

operate a federally authorized interstate pipeline “by

the exercise of the right of eminent domain in the district court.” 15 U.S.C. 717f(h). On its face, that authority extends to any property “necessary” for the “construct[ion], operat[ion], and maint[enance]” of the pipeline, ibid., 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

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

20

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).

2. 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. As respondents acknowledge (Br. in Opp.

18), nothing in the NGA limits 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

right of eminent domain. See J.A. 419-423.

3. The lack of any State-owned-property exception

to Section 717f(h) is confirmed by the existence of such

exceptions in other statutes delegating the federal right

of eminent domain. 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 licenses 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 substantially” “follow[ed]” it. S. Rep. No. 429, 80th Cong., 1st

21

Sess. 1 (1947) (Senate Report). In 1992, however, Congress amended the FPA provision, withdrawing from licensees the authority 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.”

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

XVII, § 1701(d), 106 Stat. 3009.

That amendment is instructive in two respects.

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 Stateowned 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 Stateowned 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).

And Congress did not do so in the NGA.

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

relevance of the 1992 FPA amendment on the ground

that, unlike the 1947 amendment adding Section 717f(h)

to the NGA, the FPA amendment was enacted during a

seven-year period from 1989 to 1996 in which this

Court’s precedent held that Congress could abrogate

state sovereign immunity pursuant to its Commerce

Clause power. Compare Pennsylvania v. Union Gas

22

Co., 491 U.S. 1, 19 (1989) (plurality opinion), with Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66 (1996)

(overruling Union Gas). But the FPA and NGA delegate federal eminent-domain authority; they do not purport to abrogate state sovereign immunity. Moreover,

the court of appeals’ reasoning cannot explain Congress’s decision in 1992 to leave the NGA’s broad delegation of eminent-domain authority intact while amending the closely related FPA provision.

In any event, Congress has enacted similar carveouts from delegations of federal eminent-domain authority outside that narrow time period. See, e.g., Electricity Modernization Act of 2005, Pub. L. No. 109-58,

Tit. XII, § 1221(a), 119 Stat. 946, 948 (authorizing

FERC permit holders to “acquire the right[s]-of-way by

the exercise of the right of eminent domain in the district court” for building electric transmission facilities

“to be located on property other than property owned

by the United States or a State”); Amtrak Improvement

Act of 1974, Pub. L. No. 93-496, § 6, 88 Stat. 1528 (authorizing Amtrak to acquire “by the exercise of eminent

domain * * * in the district court” interests in property, except “property of a railroad or property of a

State or political subdivision thereof or of any other

governmental agency”) 2; Act of Nov. 6, 1966, Pub. L.

No. 89-774, 80 Stat. 1324, 1350-1351 (authorizing Washington Metropolitan Area Transit Authority to acquire

property “by condemnation,” “except property owned

by,” among other entities, state signatories to the governing compact).

The court of appeals mistakenly stated that Amtrak’s carve-out

for State-owned property was also enacted during the same sevenyear period. Pet. App. 29 n.20. That carve-out, however, has existed

since 1974. See Amtrak Improvement Act § 6, 88 Stat. 1528.

2

23

4. Finally, the court of appeals’ finding of an unwritten exception for State-owned property in Section

717f(h) is belied by the provision’s history and purpose.

Prior to Section 717f(h)’s enactment in 1947, pipeline

companies relied on state-law mechanisms to acquire

needed land for their federal projects. Senate Report 12. After some States withheld eminent-domain authority for projects they disapproved—for example, where

the pipeline operator was a foreign corporation or the

project did not serve the State’s consumers—Congress

added Section 717f(h) to prevent States from “nullif [ ying]” the Commission’s exercise of its “exclusive jurisdiction to regulate the transportation of natural gas

in interstate commerce.” Id. at 2-4.

The court of appeals’ statutory interpretation would

defeat the purpose of Section 717f(h), and “impair the

NGA’s superordinate goal of ensuring the public has access to reliable, affordable supplies of natural gas” in

the very same way. J.A. 427; see J.A. 428 n.221. New

Jersey, for example, claims a non-fee property interest

in 15% of its total land area, even before accounting for

fee interests in state forests, parks, and the bed of navigable waterways. J.A. 429 n.228. Although the States’

total non-fee interests nationwide are difficult to calculate, one study estimates that, collectively, the States

own over 200 million acres in fee, approximately 9% of

the Nation’s land. Robert H. Nelson, State-Owned

Lands in the Eastern United States 8 (2018), https://

www.perc.org/wp-content/uploads/2018/03/PERC-ELRweb.pdf.

The interests States own today, moreover, are just

the beginning. Most States utilize State-owned conservation easements like the ones that respondents rely on

24

here. See Zach Wright, Note, Siting Natural Gas Pipelines Post-PennEast: The New Power of State-Held

Conservation Easements, 105 Minn. L. Rev. 1053, 11011104 & nn. 294-345 (2020) (collecting citations). The federal government generally supports States’ efforts to

use such easements to protect valuable farmland and

open space. See 7 C.F.R. Pt. 1468 (grant programs).

But the decision below converts those programs into a

sword against federally approved projects.

For example, in New Jersey, the State can acquire

new conservation easements by purchase or condemnation. See N.J. Stat. Ann. §§ 13:8A-37(d), 13:8A-40(a)

(West 2003). Under the court of appeals’ decision, all

the State needs to preclude any FERC-approved project it opposes is a willing landowner along the route.

Indeed, even if the landowner were unwilling, the State

could invoke its own eminent-domain power. Id. § 13:8A40. While a landowner could fight those efforts, New

Jersey is a quick-take State that can acquire immediate

title upon filing a declaration of taking and depositing

estimated compensation. Id. § 20:3-19 (West 1997).

With similar procedures available across the Nation,

the effect on FERC’s ability to administer the interstate natural-gas system could be “profound[ ].” J.A. 426.

It is implausible to think that the same Congress that

enacted Section 717f(h) to prevent States from interfering with FERC-approved pipelines by refusing to allow

pipelines to use state eminent-domain procedures intended to allow States to accomplish the same obstruction by invoking those procedures themselves.

B. Principles Of State Sovereign Immunity Do Not

Require A Different Conclusion

The court of appeals’ contrary conclusion was primarily based not on disagreement about Section 717f(h)’s

25

most natural reading, but on constitutional concerns.

The court interpreted Section 717f(h) not to authorize

certificate holders to condemn State-owned land based

on the court’s doubt that the Eleventh Amendment

would permit the United States to authorize such actions. That concern was misplaced.

1. a. As this Court’s precedents establish, the “States

entered the federal system with their sovereignty intact,” Alden v. Maine, 527 U.S. 706, 713 (1999) (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.” Ibid. Accordingly, a State is 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).

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.’ ”

Blatchford, 501 U.S. at 779. To the contrary, “[t]he right

of eminent domain was one of those means well known

when the Constitution was adopted, and employed to

obtain lands for public uses.” Kohl v. United States,

91 U.S. 367, 372 (1876). Indeed, the power “is essential

to a sovereign government.” United States v. Carmack,

329 U.S. 230, 239 (1946). This Court thus recognized

long ago that the federal government’s eminent-domain

authority “can neither be enlarged nor diminished by a

State. Nor can any State prescribe the manner in which

it must be exercised.” Kohl, 91 U.S. at 374. And “[t]he

fact that land is owned by a state is no barrier to its

condemnation by the United States.” Oklahoma ex rel.

26

Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534 (1941).

The only question, then, is whether the federal eminentdomain power inherent in the plan of the Convention includes the ability to authorize private entities to exercise it. History answers that question with a yes.

b. The power of eminent domain has been understood since before the Founding as a sovereign power

that private entities may exercise for projects that the

sovereign deems in the public interest. Colonial governments, for example, passed so-called Mill Acts,

which authorized land to be taken or inundated for the

construction and maintenance of mills for the public. 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, Act IV, reprinted in 2 William Waller Hening, The Statutes at

Large 260-261 (1823). Similar statutes were enacted before independence 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 Mill Acts 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 by

private entities for the construction of public and private

roadways. 1 Nichols on Eminent Domain § 1.22 (3d ed.

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,

27

ch. 342, § 1, reprinted in 4 James T. Mitchell & Henry

Flanders, The Statutes at Large of Pennsylvania 296297 (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.

Similar provisions continued to be enacted 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).

And many States also delegated the eminent-domain

power to private companies for public projects like

“building wharves and basins, establishing ferries,

draining marshes and swamps, and conveying water

to towns.” Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government,

33 J. Econ. Hist. 232, 239 n.24 (1973); see, e.g., Scudder v. Trenton Delaware Falls Co., 1 N.J. Eq. 694 (N.J.

Ch. 1832).

Congress too has long delegated the federal right of

eminent domain to private actors in similar circumstances. In 1809, Congress authorized a corporation to

build a turnpike through Alexandria (then part of the

District of Columbia) and to condemn property as

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

31, § 7, 2 Stat. 541-542; see Chesapeake & O. Canal Co.

v. Union Bank, 5 F. Cas. 570, 571 (C.C.D.C. 1830) (No.

2653) (federal delegation of eminent-domain authority

to build a canal in the District of Columbia). And throughout the nineteenth century, Congress authorized railroad companies to condemn land across the territories.

28

See, e.g., Act of Mar. 2, 1831, ch. 85, 4 Stat. 467, 477; Act

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

For federal projects within the States, soon after the

Founding, States authorized federal officials to exercise

the States’ own eminent-domain authority, see, e.g., Act

of Mar. 1794, 1794 R.I. Acts & Resolves 11, 12, or made

outright grants to the federal government, see, e.g., Act

of Feb. 3, 1790, ch. 3, 1790 N.Y. Laws 106, 107. In the

1860s, however, Congress began delegating federal

eminent-domain authority to private corporations for

constructing railroads through the States. See, e.g., Act

of July 2, 1864, ch. 217, 13 Stat. 365; Act of July 27, 1866,

ch. 278, 14 Stat. 292. And since 1876, when in Kohl this

Court put to rest any doubts about whether the federal

government’s eminent-domain authority could be exercised within state boundaries, see 91 U.S. at 371-372,

Congress has regularly delegated that authority 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 pp. 20-22, supra (collecting additional

examples); see also Luxton v. North River Bridge Co.,

153 U.S. 525, 529-530 (1894).

c. For the nearly 150 years since Kohl, no one appears to have seriously questioned that the federal government’s eminent-domain authority includes the authority to condemn property owned by a State. See

Henry Stanberry, Acquisition of Property for Public

Use, 12 Op. Att’y Gen. 173, 175 (1867) (suggesting that

29

Secretary of the Treasury seek a special act of Congress

“authorizing a proceeding to condemn” property owned

by the State of Ohio for a federal lighthouse); see Act of

July 24, 1935, ch. 414, § 2, 49 Stat. 496-467 (authorizing

Secretary of the Interior to “acquire by condemnation”

certain lands “held in public, private, State, or Indian

ownership” for purposes of establishing an Indian reservation); Act of Sept. 7, 1950, ch. 905, § 2, 64 Stat. 771 (authorizing Secretary of Commerce to “acquire, by purchase, lease, condemnation, or otherwise,” land required

to construct what is now Washington Dulles International Airport).

During that time, Congress has expressly authorized

condemnation actions by private actors against States in

federal district courts. See 16 U.S.C. 814 (establishing

special procedures before FPA licensee may “exercise

the right of eminent domain in the district court of the

United States for the district” in which “lands or other

property that are owned by a State or political subdivision” are located). Even when the authorization did not

expressly include State-owned land, it has been understood to include such land. See, e.g., Transcontinental

Gas Pipe Line Co. v. 0.607 Acres of Land, No. 15-cv-428

(D.N.J. Feb. 23, 2015); Stockton v. Baltimore & N.Y.R.

Co., 32 F. 9, 17 (C.C.D.N.J. 1887) (Bradley, J.), appeal

dismissed, 140 U.S. 699 (1891).

This “longstanding and established” history bears

“great weight” in the constitutional analysis. Chiafalo v.

Washington, 140 S. Ct. 2316, 2326 (2020). The eminentdomain authority is a sovereign power delegable to private parties for public projects. It has been used in that

manner consistently since before the Founding through

today. In light of this long unbroken history, there is no

30

basis to conclude that, when the States granted the federal government that power in the plan of the Convention, they silently retained the right to veto delegations

of its exercise, simply by obtaining some kind of property interest in the land at issue.

2. a. The court of appeals’ contrary analysis primarily rests on its assertion that the federal government’s

“ability to condemn State land” is actually “the function

of two separate powers: the government’s eminentdomain power and its exemption from Eleventh Amendment immunity.” Pet. App. 12. But this Court has never

drawn such an artificial distinction between an entity’s

authority to exercise the right of eminent domain and

its authority to file a condemnation acting against a nonconsenting landowner. The Court should not do so here.

The government generally “may take property pursuant to its power of eminent domain, either by entering

into physical possession of the property without a court

order, or by instituting condemnation proceedings.”

Best v. Humboldt Placer Mining Co., 371 U.S. 334, 340

(1963). In Kohl, the Court held that a statutory grant

of authority to obtain land by condemnation implied

“the power to obtain [the land] by any means that were

competent to adjudge a condemnation.” 91 U.S. at 375.

Respondent’s novel assertion of Eleventh Amendment

immunity from a condemnation action brought to effectuate a valid delegation of the right of eminent domain

does not require a different approach.

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

is instructive. There, the State of Georgia contested the

City of Chattanooga’s effort to condemn property that

Georgia owned and used to operate a railroad within

Tennessee. Id. at 478-479. Georgia argued that al-

31

though the City had been delegated Tennessee’s general eminent-domain authority, the grant did not specifically include the right to exercise that authority against

land owned by a State. Id. at 479. When the City filed

suit in a Tennessee court to condemn a right-of-way

through Georgia’s property, the State asserted sovereign immunity and asked this Court to prevent the condemnation action from going forward. Ibid.

This Court refused. The Court explained that “[t]he

power of eminent domain is an attribute of sovereignty ”

that “extends to all property within the jurisdiction of

the State.” City of Chattanooga, 264 U.S. at 480. It

reasoned that “[l]and acquired by one State in another

State is held subject to the laws of the latter and to all

the incidents of private ownership.” Ibid. And because

Georgia held its land subject to Tennessee’s power of

eminent domain, Georgia could not assert sovereign immunity against a condemnation suit filed by the City as

Tennessee’s delegee. Id. at 479-480. The same is true

here. Respondents’ property is indisputably subject to

the federal government’s eminent-domain authority.

And for that reason, respondents likewise cannot assert

sovereign immunity against the condemnation suit filed

by petitioner, the federal government’s delegee.

b. The court of appeals expressed concern (Pet. App.

14) that it could not recognize petitioner’s ability to file

a condemnation suit here without recognizing the delegability of an exemption from Eleventh Amendment

immunity for any type of suit. It cited (id. at 14-15)

this Court’s skepticism of such delegation authority in

Blatchford, 501 U.S. at 785. And it worried (Pet. App.

20) that permitting Congress to delegate its general exemption from Eleventh Amendment immunity could

“undermine the careful limits” this Court has placed on

32

Congress’s authority to abrogate that immunity for

suits by private parties to seek money damages. But

the Eleventh Amendment poses no barrier to petitioner’s exercise of federal eminent domain—and the

concomitant right to condemn—because the sovereign

power of eminent domain has always encompassed the

power to authorize private parties to exercise it for

the construction of infrastructure such as mills, roads,

canals, and railroads to serve the public. See Luxton,

153 U.S. at 529-530. Acknowledging that history does

not imply that other sovereign powers operate in the

same way.

To the contrary, this Court has long recognized that,

as a general matter, only an “Officer of the United

States” can “exercis[e] significant authority pursuant to

the laws of the United States,” with the federal direction and supervision such status constitutionally requires. Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam); see Department of Transp. v. Association of Am.

R.Rs., 575 U.S. 43, 61 (2015) (Alito, J., concurring)

(“Congress cannot delegate away its vested powers.”);

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 197 (2000) (Kennedy, J., concurring) (noting “[d]ifficult and fundamental questions”

raised by “delegation[s] of Executive power”). The validity of any delegation to a private party of such sovereign authority—and any right to sue a sovereign State

under such a delegation—would have to be justified on

its own terms, and would find no support in the particular history of eminent domain.

c. Finally, the court of appeals expressed (Pet. App.

17-18) concerns about political accountability for private

parties’ exercise of the federal eminent-domain author-

33

ity. 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 concerning

which land, whether State-owned or otherwise, will be

included in the pipeline route and thus (if necessary)

subject to the exercise of eminent domain through a

condemnation action. See 15 U.S.C. 717f(e). 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” for other purposes.

Alden, 527 U.S. at 756.

Viewing the process as a whole underscores the government’s role and accountability. In seeking a certificate of public convenience and necessity, pipeline operators are required to make a “good faith effort to notify

all affected landowners.” 18 C.F.R. 157.6(d). Property

owners, including the States, may object to the route

before the agency before any siting decision is made.

Upon making the decision, FERC is authorized to

attach any “terms and conditions” to its issuance of

a certificate in the public interest. 15 U.S.C. 717f(e).

And if any objections remain, a State may invoke the

jurisdiction of an Article III court to challenge the

Commission’s actions, including the decision to traverse a State’s land and the corresponding delegation

of eminent-domain authority to acquire that land. 15

U.S.C. 717r(b).

In the end, the condemnation action merely furnishes a mechanism to provide the property owner—

including, here, the State—with just compensation and

34

effectuates the transfer of title that completes the exercise of eminent domain. 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 private entities’ exercising the right of eminent domain to construct

similar infrastructure to serve the public—from relying

on private entities to implement such federal determinations and satisfy the requirement of compensation.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be vacated on jurisdictional grounds

or reversed on the merits.

Respectfully submitted.

MATTHEW R. CHRISTIANSEN

General Counsel

DAVID L. MORENOFF

Deputy General Counsel

ROBERT H. SOLOMON

Solicitor

ANAND R. VISWANATHAN

Attorney

Federal Energy Regulatory

Commission

MARCH 2021

ELIZABETH B. PRELOGAR

Acting Solicitor General

JEAN E. WILLIAMS

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

RACHEL HERON

Attorney