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.

NEW JERSEY, ET AL.

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

BRIEF OF THE STATES OF OREGON, CALIFORNIA,

CONNECTICUT, DELAWARE, HAWAII, ILLINOIS,

MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN,

MINNESOTA, NEVADA, NEW MEXICO, NEW YORK,

NORTH CAROLINA, RHODE ISLAND, VERMONT,

VIRGINIA AND WASHINGTON, AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

ELLEN F. ROSENBLUM

Attorney General

of Oregon

PAUL L. SMITH

BENJAMIN GUTMAN

Deputy Solicitor General

Solicitor General

JONA J. MAUKONEN

Counsel of Record

PHILIP M. THOENNES

1162 Court Street NE

INGE D. WELLS

Salem, Oregon 97301

Assistant Attorneys

(503) 378-4402

General

benjamin.gutman@

doj.state.or.us

(Additional counsel listed on signature page)

QUESTIONS PRESENTED

1. Does a State retain sovereign immunity from suit

in a condemnation proceeding brought by a

private party under the Natural Gas Act’s

eminent domain provision, 15 U.S.C. § 717f(h)?

2. If so, is a State entitled to assert its immunity as a

defense to the condemnation suit rather than

being required to litigate it in collateral

administrative proceedings before the Federal

Energy Regulatory Commission?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

TABLE OF CONTENTS.........................................ii, iii

TABLE OF AUTHORITIES .................................iii - vi

INTEREST OF AMICI STATES................................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 4

A. Congress cannot delegate to a private party the

federal government’s authority to sue

unconsenting States to take state lands. ...............4

1. Sovereign immunity is an integral part of the

States’ status as sovereigns in our federalist

system................................................................ 5

2. The proposed delegation exception is

inconsistent with our constitutional structure

and respect for States’ dignity........................ 10

a. Delegation would circumvent the ban on

abrogating, under the Commerce Clause,

state immunity to private suits. ............... 11

b. A private suit is not constitutionally

equivalent to a suit by the United States. 14

3. Delegation is particularly intolerable in the

context of private condemnation suits. .......... 16

ii

a. State authority over state land has special

importance in the analysis of sovereign

immunity.................................................... 16

b. Intergovernmental takings require an

exercise of political responsibility that

cannot be delegated to a private party. .... 18

B. Congress cannot abrogate a State’s sovereign

immunity by requiring it to litigate the defense

in collateral proceedings. ......................................24

CONCLUSION .......................................................... 29

TABLE OF AUTHORITIES

Page(s)

Cases Cited

Alden v. Maine,

527 U.S. 706 (1999) ................ 4, 5, 7, 8, 9, 10, 12, 14

Allegheny Def. Project v. FERC,

932 F.3d 940 (D.C. Cir. 2019),

rev’d, 964 F.3d 1 (D.C. Cir. 2020) (en banc) .......... 25

Blatchford v. Native Village of Noatak,

501 U.S. 775 (1991) .......................................... 13, 15

Cent. Va. Cmty. Coll. v. Katz,

546 U.S. 356 (2006) ................................................ 11

Chisholm v. Georgia,

2 U.S. (2 Dall.) 419 (1793).................................... 6, 7

City of Tacoma v. Taxpayers of Tacoma,

357 U.S. 320 (1958) .......................................... 27, 28

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821).................................. 6

iii

Columbia Gas Transmission, LLC v. 0.12 Acres of

Land, More or Less, in Washington Cty., Md.,

No. 1:19-cv-01444-GLR (D. Md. Aug. 22, 2019) ...... 2

Evans v. FERC,

No. 20-1161 (D.C. Cir. filed May 22, 2020) ............. 1

Ex parte Young,

209 U.S. 123 (1908) ................................................ 17

Fed. Mar. Comm’n v. S.C. Ports Auth.,

535 U.S. 743 (2002) ........................ 10, 13, 14, 15, 23

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ................................................ 11

Franchise Tax Board of California v. Hyatt,

139 S. Ct. 1485 (2019) .......................................... 8, 9

Hans v. Louisiana,

134 U.S. 1 (1890) .................................................. 4, 7

Hariston v. Danville & Western R. Co.,

208 U.S. 598 (1908) ................................................ 20

Idaho v. Coeur d’Alene Tribe,

521 U.S. 261 (1997) .......................................... 17, 18

Ill. Cent. R. Co. v. Illinois,

146 U.S. 387 (1892) ................................................ 17

Jordan Cove Energy Project L.P., Pac. Connector

Gas Pipeline, LP,

170 FERC ¶ 61,202 (2020) ....................................... 1

Kelo v. City of New London,

545 U.S. 469 (2005) ................................................ 20

Kohl v. United States,

91 U.S. 367 (1875) .................................................. 19

Nevada v. Hall,

440 U. S. 410 (1979) ................................................. 9

iv

Oregon ex rel. State Land Bd. v. Corvallis Sand

& Gravel Co.,

429 U.S. 363 (1977) ................................................ 17

Pennsylvania v. Union Gas Company,

491 U.S. 1 (1989) .................................................... 12

Pollard’s Lessee v. Hagan,

44 U.S. (3 How.) 212 (1845) ................................... 19

Principality of Monaco v. Mississippi,

292 U.S. 313 (1934) ...................................... 5, 10, 14

Seminole Tribe v. Florida,

517 U.S. 44 (1996) .............................................. 4, 12

United States v. 50 Acres of Land,

469 U.S. 24 (1984) ............................................ 19, 21

United States v. Carmack,

329 U.S. 230 (1946) ................................................ 19

United States v. Miller,

317 U.S. 369 (1943) ................................................ 21

Constitutional and Statutory Provisions

15 U.S.C. § 717(a) ...................................................... 12

15 U.S.C. § 717f(h).............................................. i, 1, 23

16 U.S.C. § 825l(b) ..................................................... 27

28 U.S.C. § 1251(a) .................................................... 16

42 U.S.C. § 4651......................................................... 20

N.Y. Const., Art. XIV, § 1 .......................................... 21

U.S. Const., Art. II, § 3 .............................................. 14

U.S. Const., Art. III, § 2................................... 6, 10, 16

U.S. Const., Amend. V ......................................... 20, 21

U.S. Const., Amend. XI.................... 2, 5, 6, 7, 8, 12, 16

U.S. Const., Amend. XIV ..................................... 10, 11

U.S. Const., Amend. XIV, § 5 .................................... 11

v

Administrative Rules

Or. Admin. R. § 141-123-0020 ................................... 23

Or. Admin. R. § 141-123-0020(8)(d) .......................... 21

Other Authorities

Alexander Hamilton,

The Federalist No. 81 (Jacob E. Cooke ed., 1961).....

.............................................................................. 6, 8

Cong. Research Serv., The Constitution of the United

States of America: Analysis and Interpretation,

Centennial Edition—Interim,

S. Doc. No. 112-9 (2014) ........................................... 7

Hearing Transcript,

Columbia Gas, No. 1:19-cv01444-GLR (Sept. 17,

2019) ......................................................................... 2

Petition for Judicial Review,

Del. Riverkeeper Network v. FERC,

No. 18-1128 (D.C. Cir. filed May 9, 2018) ............. 26

The Debates in the Several State Conventions, on

the Adoption of the Federal Constitution 526

(Jonathan Elliot ed., Washington, 2d ed. 1836)...... 6

William Baude,

Rethinking the Federal Eminent Domain Power,

122 Yale L.J. 1738 (2013) ...................................... 19

vi

INTEREST OF AMICI STATES

This case raises important questions about the

nature of state sovereignty and the relationship

among the States, the federal government, and

private litigants. The amici States have a strong

interest in the answers to those questions, both in the

specific context of private condemnation of stateowned land to construct a pipeline and more

generally about whether the federal government can

delegate to a private party the authority to hale an

unconsenting State into court.

Some of the amici States face the prospect of suits

by private parties seeking to condemn state-owned

land to build pipelines on those lands, even before the

underlying project has final approval. In Oregon, for

example, the Federal Energy Regulatory Commission

(FERC) recently issued a certificate of public

convenience and necessity for construction and

operation of the Jordan Cove pipeline. See Jordan

Cove Energy Project L.P., Pac. Connector Gas

Pipeline, LP, 170 FERC ¶ 61,202 (2020). If

constructed, the pipeline will stretch 229 miles across

southern Oregon, crossing state-owned waterbodies

and land. See id. at 61356, 62370, 62391. With its

FERC certificate, the private company developing the

Jordan Cove pipeline is authorized to condemn the

rights-of-way and other lands “necessary” for the

equipment used to run the pipeline, see 15 U.S.C.

§ 717f(h), even though the legality of FERC’s action is

still under review in the United States Court of

Appeals for the District of Columbia Circuit. See

Evans v. FERC, No. 20-1161 (D.C. Cir. filed May 22,

2020).

2

Similarly, in Maryland, the sponsor of the Eastern

Panhandle Expansion Project sued to condemn

property owned by the Maryland Department of

Natural Resources. Columbia Gas Transmission, LLC

v. 0.12 Acres of Land, More or Less, in Washington

Cty., Md., No. 1:19-cv-01444-GLR (D. Md. Aug. 22,

2019). The pipeline would run under the Western

Maryland Rail Trail, a popular destination for hikers

and bicyclists. The district court dismissed the action

on Eleventh Amendment grounds, See 8/21/19

Hearing Transcript at 12-18, Columbia Gas, No. 1:19cv01444-GLR (Sept. 17, 2019), Dkt. 47, and the case

is on appeal to the United States Court of Appeals for

the Fourth Circuit.

More generally, all the amici States—regardless of

whether they currently face proposed pipelines that

cross state lands—have an interest in preserving the

fundamental principles of state sovereign immunity

and federalism that are at issue here. Petitioner and

the United States argue that Congress can delegate

to private parties the federal government’s power to

sue unconsenting States; the United States also urges

that States are barred even from asserting their

immunity in the very suits that violate it. If accepted,

those arguments would bring about a radical change

in federal-state relations and undermine the

important limits on congressional authority to

abrogate state sovereign immunity that this Court

has repeatedly confirmed.

SUMMARY OF ARGUMENT

Congress cannot authorize private parties to sue

unconsenting States to take state-owned property by

condemnation. States are sovereigns, and immunity

3

from private suit is inherent in the nature of

sovereignty. The States did not surrender their

sovereign immunity from private suit through

ratification of the Constitution. Congress has no

authority to abrogate that immunity when exercising

its Commerce Clause powers.

Nor can Congress circumvent that limitation by

delegating to private parties the federal government’s

own authority to sue States. Delegation of authority

over that litigation to a politically unaccountable

entity would be inconsistent with the States’

constitutional status as co-sovereigns in our federal

system.

Concern for state sovereignty is particularly

strong when the private suit affects a State’s

authority over its own property. The States hold

property for public purposes, including recreation,

conservation, and public amenities like schools and

roads, or to generate income for the State’s

governance. Congress cannot cede the power to take

property from an unconsenting State—which, it bears

emphasizing, is already putting that property to a

public use—to a private party.

Congress also cannot preclude States from

asserting their sovereign immunity as a defense to

suit by a private party. The United States argues that

States must assert that immunity in administrative

proceedings before FERC and on direct judicial

review of FERC’s determination. But because those

proceedings may not be completed until after the

condemnation suit is adjudicated, the practical effect

of the United States’ argument would be to abrogate

state sovereign immunity from private suit. Congress

4

can no more deprive States of immunity indirectly

through jurisdiction-stripping rules than directly

through abrogation.

ARGUMENT

Respondents New Jersey and its agencies explain

why the Natural Gas Act (NGA) does not authorize

private parties to sue States and does not require

States to raise that argument in the collateral FERC

proceedings. The amici States focus instead on the

constitutional questions that undergird that statutory

analysis: whether Congress has the power to

authorize those suits or to prevent States from

raising their immunity as a defense in the suits. As

explained below, it does not.

A. Congress cannot delegate to a private party

the federal government’s authority to sue

unconsenting States to take state lands.

“[E]ach State is a sovereign entity in our federal

system[.]” Seminole Tribe v. Florida, 517 U.S. 44, 54

(1996). And “‘[i]t is inherent in the nature of

sovereignty not to be amenable to the suit of an

individual’ without [the sovereign’s] consent.” Id.

(quoting Hans v. Louisiana, 134 U.S. 1, 13 (1890)).

Although the States agreed through the “plan of the

Convention” that they would be subject to suit by the

federal government itself, Alden v. Maine, 527 U.S.

706, 755 (1999), they did not surrender their

sovereign immunity from suits by private parties.

Congress cannot circumvent the limits on its

ability to abrogate state sovereign immunity by

delegating to private parties the federal government’s

authority to sue States. “[O]ur federalism requires

5

that Congress treat the States in a manner consistent

with their status as residuary sovereigns and joint

participants in the governance of the Nation.” Alden,

527 U.S. at 748. This Court has long rejected similar

attempts at transgressing the confines of “the

structure of the original Constitution itself.” Id. at

728. It should do so here, too, and reject the

delegation exception to sovereign immunity that

petitioner and the United States seek.

As explained below, state sovereign immunity

inheres in our constitutional structure. A delegation

exception would be fundamentally inconsistent with

that structure. And it would be particularly

intolerable in the context of condemnation

proceedings, which undermine the States’ core

sovereignty interests over state lands.

1. Sovereign immunity is an integral part of

the States’ status as sovereigns in our

federalist system.

Two foundational principles underpin this Court’s

sovereign immunity jurisprudence: (1) an antecedent,

extratextual understanding of States’ sovereign

immunity, and (2) respect for States as sovereigns in

our federal system.

The first principle derives from the history of the

Eleventh Amendment, which demonstrates the

central role that state sovereign immunity plays in

the constitutional structure. That history shows that

sovereign immunity is antecedent to the Constitution

and not limited by its text. See Principality of Monaco

v. Mississippi, 292 U.S. 313, 322 (1934) (“Manifestly,

we cannot rest with a mere literal application of the

6

words of section 2 of article III, or assume that the

letter of the Eleventh Amendment exhausts the

restrictions upon suits against non-consenting

States.”).

The framers thoroughly debated the issue of state

immunity. See 3 The Debates in the Several State

Conventions, on the Adoption of the Federal

Constitution

526–27

(Jonathan

Elliot

ed.,

Washington, 2d ed. 1836) (describing those debates).

At the time, many States faced Revolutionary War

debts and feared the prospect of answering to their

creditors. See Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 406 (1821) (describing that apprehension).

Alexander Hamilton tried to assure the wary that the

States would not be subject to such suits unless the

States “surrendered” their inherent immunity

“through the plan of this convention.” The Federalist

No. 81, at 548–49 (Alexander Hamilton) (Jacob E.

Cooke ed., 1961). Nonetheless, the text of Article III

of the United States Constitution suggested that

States did not enjoy immunity from a suit brought by

a private party in federal court. See U.S. Const. Art.

III, § 2 (among the “Cases” and “Controversies”

justiciable in a federal forum are those “between a

State and Citizens of another State[.]”).

Soon after ratification the debtor States’ fears

were realized. In Chisholm v. Georgia, 2 U.S. (2 Dall.)

419 (1793), this Court ordered an unwilling State to

honor a bond that the State had issued during the

war.

The reaction to Chisholm was swift. The Eleventh

Amendment was ratified less than two years later,

thereby nullifying Chisholm’s interpretation of

7

Article III. See Cong. Research Serv., The

Constitution of the United States of America:

Analysis and Interpretation, Centennial Edition—

Interim, S. Doc. No. 112-9, at 28 n.3 (2014)

(describing ratification history). The Eleventh

Amendment provides:

The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.

U.S. Const. Amend. XI. It thus directly undid this

Court’s interpretation of the provision of Article III

that had abrogated state sovereign immunity from

suit in federal court.

As this Court has recognized, the Eleventh

Amendment reflects state sovereign immunity but

does not define it. For example, although the

Eleventh Amendment on its face does not bar a

federal suit against a State brought by one of its own

citizens, the State nonetheless retains sovereign

immunity against such a suit. See Hans, 134 U.S. at

15. Allowing a State to be sued by one of its own

citizens but not a citizen of a different State would be

as “startling and unexpected” as the outcome of

Chisholm, because “[t]he suability of a State without

its consent was a thing unknown to the law.” Id. at

11, 16.

Similarly, this Court held in Alden v. Maine, 527

U.S. 706 (1999), that—even though the Eleventh

Amendment addresses only the “Judicial power of the

United States”—sovereign immunity is not limited to

8

federal court. In Alden, private parties sued the State

for violations of the Fair Labor Standards Act in

state, not federal, court. This Court determined that

the suit was barred by sovereign immunity. Alden,

527 U.S. at 712. The Court noted that “sovereign

immunity derives not from the Eleventh Amendment

but from the structure of the original Constitution

itself.” Id. at 728. “The Eleventh Amendment

confirmed, rather than established, sovereign

immunity as a constitutional principle[.]” Id. at 728–

29. Thus, “it follows that the scope of the States’

immunity from suit is demarcated not by the text of

the Amendment alone but by fundamental postulates

implicit in the constitutional design.” Id. at 729.

Because the States retain a measure of sovereignty

under that constitutional design, they must be

“‘immune from suit, without their consent,’” unless a

State voluntarily surrenders its immunity. Id. at 730

(quoting The Federalist No. 81, at 548–49).

Alden also reflects the second foundational

principle that animates this Court’s sovereign

immunity jurisprudence: respect for the States as

sovereigns in our federal system. The Court

recognized the “indignity of subjecting a State to the

coercive process of judicial tribunals at the instance of

private parties.” Id. at 749 (quotation marks omitted).

State sovereignty is a “separate and distinct

structural principle” arising out of the federalismbased system of governance established in the

Constitution. See id. at 730.

Respect for States as sovereigns also figured in

this Court’s recent decision in Franchise Tax Board of

California v. Hyatt, 139 S. Ct. 1485 (2019). The

9

question in Franchise Tax Board was whether to

overrule Nevada v. Hall, 440 U. S. 410 (1979), in

which this Court held that the Constitution does not

bar a private suit against a State in the courts of

another State. See Hall, 440 U. S. at 416–21. The

Hall Court had concluded that the States maintained

sovereign immunity in each other’s courts the same

way that foreign nations do—that is, immunity is

available to the defendant State only if the forum

State “voluntar[ily]” chooses “to respect the dignity of

the [defendant State] as a matter of comity.” Id. at

416.

This Court overruled Hall and concluded that

“interstate sovereign immunity is preserved in the

constitutional design[.]” Franchise Tax Bd., 139 S. Ct.

at 1496. In reaching that conclusion, this Court noted

“that the Constitution affirmatively altered the

relationships between the States, so that they no

longer relate to each other solely as foreign

sovereigns. Each State’s equal dignity and

sovereignty under the Constitution implies certain

constitutional limitations on the sovereignty of all of

its sister States.” Id. at 1497 (quotation marks and

brackets omitted). Thus, the States are not left to

afford one another immunity as a matter of comity.

Rather, the Constitution “embeds interstate

sovereign immunity within the constitutional design.”

Id.

This Court’s decisions in Alden and Franchise Tax

Board highlight an important point: State sovereign

immunity protects the dignity of the States as

sovereigns. “The preeminent purpose of state

sovereign immunity is to accord States the dignity

10

that is consistent with their status as sovereign

entities.” Fed. Mar. Comm’n v. S.C. Ports Auth., 535

U.S. 743, 760 (2002); see also id. (holding that States

have sovereign immunity from administrative as well

as judicial proceedings).

Of course, the States agreed, through the “plan of

the Convention,” that they would be subject to suit in

certain circumstances. Alden, 527 U.S. at 713. Thus,

under Article III, section 2, States are subject to suit

brought by another State in a federal forum. See U.S.

Const. Art III, § 2; Alden, 527 U.S. at 755. And States

are subject to suit brought by the United States. See

Principality of Monaco, 292 U.S. at 328. But any

exception to sovereign immunity must be grounded in

our constitutional structure and respect the States’

dignity within that structure.

2. The proposed delegation exception is

inconsistent with our constitutional

structure and respect for States’ dignity.

This Court has distinguished between the

enumerated powers under which Congress can

abrogate state sovereign immunity from private suit,

like the Fourteenth Amendment, and those under

which it cannot, like the Commerce Clause. The NGA

is Commerce Clause legislation. Congress cannot

directly abrogate the States’ immunity from private

suit in the NGA, and it should not be allowed to

circumvent that limit through the fiction of

delegating federal authority to private parties.

11

a. Delegation would circumvent the ban

on abrogating, under the Commerce

Clause, state immunity to private suits.

Even if Congress had sought in the NGA to

authorize private parties to sue States—and the

Court of Appeals properly found no such intent—that

authorization would not have been justified as an

abrogation of sovereign immunity. Congress is

empowered to abrogate state sovereign immunity to

private suits only in limited circumstances. For

example, Congress may do so when enforcing the

protections enshrined in the Fourteenth Amendment

through “appropriate legislation.” U.S. Const. Amend.

XIV, § 5. The Fourteenth Amendment, of course,

represents a substantial restriction on the use of state

power and prohibits state action that denies equal

protection or deprives persons of life, liberty, or

property without due process. This Court has held

that the express constitutional power to enforce the

substantive

protections

of

the

Fourteenth

Amendment justifies congressional abrogation of

state sovereign immunity. See Fitzpatrick v. Bitzer,

427 U.S. 445, 456 (1976) (stating that the Fourteenth

Amendment allows Congress to “provide for private

suits against States or state officials which are

constitutionally impermissible in other contexts”).

This Court also has held that the Bankruptcy Clause

abrogates state sovereign immunity, explaining that

“the States agreed in the plan of the Convention not

to assert that immunity” because of the importance of

uniform bankruptcy laws. Cent. Va. Cmty. Coll. v.

Katz, 546 U.S. 356, 373 (2006).

12

But by now it is well settled that Congress cannot

abrogate state sovereign immunity when exercising

its Commerce Clause powers. See Seminole Tribe, 517

U.S. at 66 (overruling Pennsylvania v. Union Gas

Company, 491 U.S. 1 (1989)). Seminole Tribe

“reconfirm[ed] that the background principle of state

sovereign immunity embodied in the Eleventh

Amendment is not so ephemeral as to dissipate when

the subject of the suit is an area . . . that is under the

exclusive control of the Federal Government.” Id. at

72. Thus, in Seminole Tribe, the Court held that

Congress could not subject unconsenting States to

suit by a tribe to enforce the Indian Gaming

Regulatory Act. Id. at 47. Similarly, Alden held that

Congress could not subject unconsenting States to

suits by private parties to enforce the Fair Labor

Standards Act. 527 U.S. at 712. In both cases the

Court noted that the federal government itself could

sue to enforce the statute. See Seminole Tribe, 517

U.S. at 71 n.14; Alden, 527 U.S. at 755. But that did

not justify allowing private suits.

The NGA is an exercise of congressional authority

to regulate interstate commerce in natural gas under

the Commerce Clause. See 15 U.S.C. § 717(a).

Accordingly, Congress cannot abrogate state

sovereign immunity for purposes of enforcing the

NGA.

Petitioner and the United States do not dispute

that conclusion, but they seek an end run around it

by contending that the Constitution allows the

federal government to delegate its authority to sue to

private parties. But if the federal government

possesses that authority, Seminole Tribe and Alden

13

merely identified a minor drafting error in the

statutes they struck down, not a deep constitutional

flaw. In other words, if petitioner and the United

States were right, the suits in those cases would have

been allowed if the statutes had not directly

abrogated State immunity from private suit but

instead delegated to private parties the federal

government’s own authority to sue to enforce the

statutes.

Nothing supports such a radical reinterpretation

of those seminal decisions on sovereign immunity.

Just as this Court noted that it would be “quite

strange” to prohibit Congress from abrogating

immunity in court but allow it to abrogate immunity

before an administrative tribunal, Fed. Mar. Comm’n,

535 U.S. at 761, it would be quite strange—indeed,

absurd—to prohibit Congress from abrogating

immunity from private suit but allow it to circumvent

immunity through the fiction of labeling the same

suit a delegation of federal authority to a private

party. Cf. Blatchford v. Native Village of Noatak, 501

U.S. 775, 786-77 (1991) (“[A]ssuming that delegation

of exemption from state sovereign immunity is

theoretically possible, there is no reason to believe

that Congress ever contemplated such a strange

notion.”). There is no basis in constitutional structure

or this Court’s case law for such a rule of law, which

would radically rework bedrock principles of state

sovereign immunity.

14

b. A private suit is not constitutionally

equivalent to a suit by the United

States.

In addition to being an end run around the limits

of congressional power, delegation of federal

authority to sue states fails to respect the dignity of

States as sovereigns in our constitutional structure.

For that reason, too, this Court should reject the

proposed delegation exception to sovereign immunity.

The States agreed, through the “plan of the

Convention,” that they would be subject to suit by the

federal government itself. Alden, 527 U. S. at 755

(citing Principality of Monaco, 292 U. S. at 328–29).

But there is a constitutionally significant difference

between a suit brought by another sovereign and a

suit brought by a private party. Federal officials are

“entrusted with the constitutional duty to ‘take Care

that the Laws be faithfully executed,’ U. S. Const.,

Art. II, § 3.” Alden, 527 U.S. at 755. A suit by an

official entrusted with that duty “differs in kind from

the suit of an individual” who has no such duty. Id.

“Suits brought by the United States itself require the

exercise of political responsibility for each suit

prosecuted against a State, a control which is absent

from a broad delegation to private persons to sue

nonconsenting States.” Id. at 756.

This Court’s Federal Maritime Commission

decision highlights the difference between those two

types of suits. In that case, the question was whether

a State had sovereign immunity from a private

party’s complaint before a federal administrative

agency. 535 U.S. at 747–49. The United States

argued that the State could be required to participate

15

in the administrative proceedings because “the States

have consented to actions brought by the Federal

Government.” Id. at 764. But this Court rejected that

argument, noting that “the prosecution of a complaint

filed by a private party” before the federal agency “is

plainly not controlled by the United States, but

rather is controlled by that private party[.]” Id. “As a

result, the United States plainly does not exercise

political responsibility for such complaints, but

instead has impermissibly effected a broad delegation

to private persons to sue nonconsenting States.” Id.

(quotation marks and ellipsis in original omitted).

The same is true here. Although FERC may have

approved construction of the pipeline along a

particular route, it has not exercised political

responsibility

for

filing

or

prosecuting

a

condemnation proceeding in court. That proceeding

“is plainly not controlled by the United States, but

rather is controlled by [a] private party[.]” Id. As in

Federal Maritime Commission, state sovereign

immunity bars that proceeding.

As the holding of Federal Maritime Commission

reflects, delegating federal authority to a private

party is fundamentally inconsistent with our

constitutional structure. The States’ consent to suit

by the United States through the plan of the

convention did not amount to “consent to suit by

anyone whom the United States might select.”

Blatchford, 501 U.S. at 785; see also id. (expressing

“doubt . . . that sovereign exemption can be

delegated—even if one limits the permissibility of

delegation . . . to persons on whose behalf the United

States itself might sue.” (emphasis in original)). Thus,

16

as this Court’s precedents make clear, the federal

government’s undisputed authority to bring suit

against a State does not mean that the federal

government can authorize a private party to do the

same.

A contrary rule would be untenable. This Court

has original and exclusive jurisdiction over suits

between two States. U.S. Const., Art. III, § 2; 28

U.S.C. § 1251(a). If a State could delegate that

authority to one of its residents, the result would be a

suit that flatly conflicted with the plain text of the

Eleventh Amendment. But the logic of petitioners’

and the United States’ position here would allow that

subterfuge. This Court should confirm that neither

Congress nor States can delegate to private parties

the authority to sue a State.

3. Delegation is particularly intolerable in

the context of private condemnation suits.

a. State authority over state land has

special importance in the analysis of

sovereign immunity.

For the reasons explained above, Congress cannot

delegate the federal government’s authority to sue a

State. Allowing it to do so would open a loophole in

this Court’s abrogation jurisprudence and conflict

with basic principles of state sovereignty.

But even if that principle did not hold in all

contexts, it would hold in the context of suits to

condemn state property. In addition to lands held in

a proprietary capacity, States hold tidelands,

submerged lands, and navigable waterways as

sovereign lands subject to the public trust. Ill. Cent.

17

R. Co. v. Illinois, 146 U.S. 387, 435 (1892). This Court

has recognized the special importance of state

authority over state land in the analysis of sovereign

immunity. In Idaho v. Coeur d’Alene Tribe, 521 U.S.

261 (1997), the plaintiff tribe sought a declaration of

ownership and a right to quiet enjoyment of

submerged lands surrounding a lake in Northern

Idaho. This Court held that the State was immune

from the suit even though the tribe sought

prospective injunctive relief—relief that otherwise

would be allowed under the reasoning of Ex parte

Young, 209 U.S. 123, 160 (1908). Coeur d’Alene Tribe,

521 U.S. at 282–88.

In reaching that conclusion, this Court explained

that States have “special sovereignty interests” when

a suit seeks to transfer “substantially all benefits of

ownership and control” from the State to the plaintiff.

Id. at 281–82. That is particularly so when the suit

could “divest the State of its sovereign control over

submerged lands, lands with a unique status in the

law and infused with a public trust the State itself is

bound to respect.” Id. at 283. A State’s title to

navigable waters and the soils under them was

conferred “‘by the Constitution itself.’” Id. (quoting

Oregon ex rel. State Land Bd. v. Corvallis Sand &

Gravel Co., 429 U.S. 363, 374 (1977)). “The dignity

and status of its statehood” allowed the State to

invoke sovereign immunity even though Ex parte

Young’s “fictional distinction” between a suit against

a state official and a suit against the sovereign

otherwise would have allowed the suit. Coeur d’Alene

Tribe, 521 U.S. at 269, 287.

18

The same special sovereignty interests are

implicated here since this case, too, concerns stateowned lands. The eminent domain proceedings at

issue seek to transfer ownership and control of real

property from a State to a private party. And when

the pipeline route crosses navigable waters or

tidelands—as they frequently do—eminent domain

divests the State of control over those “unique” lands

that are “infused with a public trust.” Id. at 283.

Petitioner and the United States ask this Court to

allow the suit on the fiction that it is brought under

the aegis of the federal government rather than by a

private party. But that sort of “empty formalism”

cannot defeat state sovereign immunity. Id. at 270. In

Coeur d’Alene Tribe, the tribe could not circumvent

the State’s immunity from suit over its ownership of

land by purporting to bring it against a state official

rather than the State itself. For the same reason, a

private party cannot circumvent the State’s immunity

from suit over its ownership of land by purporting to

bring it on behalf of the federal government rather

than itself. Immunity turns on the impact to the

State’s special sovereign interests in its property, not

the form of the suit.

b. Intergovernmental takings require an

exercise of political responsibility that

cannot be delegated to a private party.

Beyond the doctrinal reasons for being especially

accommodating of state sovereignty in condemnation

proceedings, there are practical reasons to do so as

well. States hold property for the benefit of the public.

When the federal government takes that property for

a different public use, it deprives the public of the

19

uses to which the property previously was put. The

competing

public

uses

at

issue

in

an

intergovernmental taking are a strong reason to

require the federal government itself—politically

accountable and charged with public duties—to take

responsibility for exercising eminent domain.

1. Intergovernmental takings by the federal

government are a relatively recent development in

the law. “At the Founding, the federal government

was not understood to have the power to exercise

eminent domain inside a state’s borders.” William

Baude, Rethinking the Federal Eminent Domain

Power, 122 Yale L.J. 1738, 1741 (2013); see also

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 223

(1845) (The United States has “no constitutional

capacity to exercise . . . eminent domain, within the

limits of a state or elsewhere, except in the cases in

which it is expressly granted.”). When the federal

government needed land, it relied on the States to

condemn it. See Baude, supra, at 1741. In 1875, this

Court held for the first time that the federal

government had the power to condemn private

property without the consent of the State in which

the property was located. Kohl v. United States, 91

U.S. 367, 374 (1875). And by the mid-twentieth

century, this Court recognized that the federal

condemnation power included the power to take

state-owned property. United States v. Carmack, 329

U.S. 230, 236 (1946); see also United States v. 50

Acres of Land, 469 U.S. 24, 31 (1984) (holding that

public condemnees must receive the same

compensation as private condemnees). While the

federal government’s authority to take state property

20

is no longer in dispute, it remains a consequential act

that demands a considered exercise of political

responsibility. The power to condemn is the power to

take property for a “public use.” U.S. Const. Amend.

V. But property owned by the State is already being

put to a public use. In our federalist system the

States have primary responsibility for protecting and

using their public lands for the benefit of their

citizens. This Court’s “jurisprudence has recognized

that the needs of society have varied between

different parts of the Nation, just as they have

evolved over time in response to changed

circumstances.” Kelo v. City of New London, 545 U.S.

469, 482 (2005). To that end, the “earliest cases”

decided by this Court “in particular embodied a

strong theme of federalism, emphasizing the ‘great

respect’ that we owe to state legislatures and state

courts in discerning local public needs.” Id. (citing

Hariston v. Danville & Western R. Co., 208 U.S. 598,

606–07 (1908)).

Intergovernmental takings are a departure from

that “strong theme of federalism.” They represent the

federal government overruling the State’s own

determination of how best to meet local needs and

serve the interests of its residents. To take state

property, the federal government must determine

that some other public use is more important than

the one to which the property is already being put.

That is not a determination that the federal

government makes lightly, because it directly

infringes on a core aspect of state sovereignty. Cf. 42

U.S.C. § 4651 (stating policy that federal agencies

21

“make every reasonable effort” to acquire real

property by negotiation rather than condemnation).

2. The difficulty of providing just compensation

also highlights the gravity of the decision to carry out

intergovernmental takings. Because States focus not

just on profiting from their property but on

preserving and enhancing the public benefits that

derive from the property, financial compensation for

the market value of property is not likely to make the

State whole. See United States v. Miller, 317 U.S. 369,

373–74 (1943) (explaining that just compensation, for

purposes of the Fifth Amendment, means “the full

and perfect equivalent in money of the property

taken” and is generally the “fair market value”). That

is, the public use to which a State has already put

public property—which may be connected to how the

State uses other adjacent or similar parcels of

property—may not be fully compensated by the

market value of the property. See 50 Acres of Land,

469 U.S. at 26 (“a public condemnee,” such as a

municipality is not “entitled to compensation

measured by the cost of acquiring a substitute facility

if it has a duty to replace the condemned facility” as

long as the “market value of the condemned property

is ascertainable”). The State might decide that other

values—like public health or cultural preservation—

outweigh any financial compensation it could obtain

for the property. See, e.g., N.Y. Const., Art. XIV, § 1

(the State’s forest preserve “shall be forever kept as

wild forest lands”); Or. Admin. R. § 141-1230020(8)(d) (the Oregon Division of State Lands cannot

grant an easement on certain lands if it would have

“unacceptable impacts on public health, safety or

22

welfare, or would result in the loss of, or damage to

natural, historical, cultural or archaeological

resources”).

3. When the party exercising eminent domain is

another sovereign like the federal government, the

concerns about public use and just compensation—

although significant—are mitigated by the exercise of

political responsibility that accompanies the decision

to bring a condemnation suit. The federal government

also owes duties to the public and is politically

accountable for the decisions it makes about how to

balance the competing public uses.

But those protections are not present when the

ultimate decision to sue is left to a private party. A

private party is not beholden to the interests of the

public when it condemns state-owned property. That

offends state sovereignty far more than the same

exercise of power by the federal government directly.

There is no merit to petitioner’s argument (Pet.

Br. 35–36) that FERC bears sufficient responsibility

for the condemnation proceedings because it approves

the pipeline route. FERC’s approval of the route does

not lead directly to condemnation proceedings. Those

proceedings happen only if the private company and

State cannot agree on the terms of the conveyance.

And because it is up to the private company to decide

when (if at all) to file condemnation proceedings—

including before the pipeline itself has all necessary

approvals—FERC

does

not

bear

political

responsibility for the decision to infringe on state

sovereignty.

23

Even with respect to private property, the NGA

requires the pipeline company to try to acquire any

necessary rights-of-way or property through

consensual negotiation before it resorts to a

condemnation suit. 15 U.S.C. § 717f(h) (“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 right-of-way . . . and the

necessary land or other property . . . it may acquire

the same by the exercise of the right of eminent

domain[.]”) (emphasis added). And when the route

crosses state land, the private company will

frequently be able to obtain the necessary interest in

land through existing state laws governing

conveyance of easements or property. See, e.g., Or.

Admin. R. § 141-123-0020 (setting forth the rules for

the Oregon Department of State Lands to grant

easements on certain lands). Because the private

company will often be able to obtain the necessary

interest in land in accordance with state law, FERC’s

approval of a pipeline route does not mean that it has

made a politically accountable decision to sue a State.

The consequential decision affecting States is not

the pipeline route approval, but the decision to

declare negotiations at an impasse and institute

condemnation proceedings. And the NGA leaves that

decision to the private party—not FERC. As with the

administrative proceedings at issue in Federal

Maritime Commission, the United States itself does

not have to take “political responsibility” for the

decision to sue rather than negotiate with the State.

535 U.S. at 764.

24

States retain a strong interest in ensuring that

any rights-of-way across state lands respect the many

purposes that those lands may serve—an interest

that can be protected through negotiation over the

terms of the easement. FERC’s authorization of a

route does not extinguish that state interest in

negotiating the terms on which they will cede their

property rights. And while the federal government

may have the authority to override a State’s

determination of how best to use its land, allowing a

private party to do the same is an intolerable

infringement on core state powers.

Petitioner overstates the practical consequences of

respecting state sovereign immunity for public

infrastructure projects. (Pet. Br. 48–51). As noted

above, private companies will often be able to acquire

the easements or property they need from the States

through negotiation or existing state laws. If they

cannot, Congress can authorize the federal

government itself to bring condemnation proceedings

to allow pipelines or other infrastructure to cross

state property. Even if that would require amending

the NGA, the need for a statutory change is no reason

to disregard the constitutional principles governing

state sovereign immunity.

B. Congress cannot abrogate a State’s sovereign

immunity by requiring it to litigate the

defense in collateral proceedings.

The United States argues even if a State

otherwise retains sovereign immunity against suits

like this one, it cannot assert that immunity in the

suit itself because allowing it to do so would amount

to a collateral challenge to FERC’s decision to

25

authorize the pipeline. (U.S. Br. 11). The United

States contends that the NGA instead requires the

immunity issue to be litigated in the FERC

proceeding itself, with judicial review thereafter in

the court of appeals. (U.S. Br. 14).

If that were the correct reading of the NGA—and

for the reasons set out by respondents, it is not—the

statute would be unconstitutional. Congress can no

more deprive the States of sovereign immunity from

suit through such a jurisdiction-stripping provision

than it can abrogate that immunity directly. Even if

Congress can impose procedural requirements for

raising immunity to a suit, the alleged jurisdictional

bar here is not such a requirement. It instead would

prevent a State from objecting to a suit by a private

party in federal court, a direct infringement of state

sovereignty.

That is particularly intolerable because the State

may not even have an opportunity to litigate its

immunity defense though the collateral proceedings

before it is subjected to the indignity of suit in federal

court. FERC proceedings and judicial review by the

court of appeals may not be completed before

condemnation suits are commenced. See Allegheny

Def. Project v. FERC, 932 F.3d 940, 948 (D.C. Cir.

2019) (Millett, J., concurring) (describing FERC’s

procedures as “a Kafkaesque regime”), rev’d, 964 F.3d

1, 10 (D.C. Cir. 2020) (en banc) (describing process of

repetitive tolling orders as allowing “the Commission

and private certificate holders . . . to split the atom of

finality” where the orders “are not final enough for

aggrieved parties to seek relief . . . but they are final

enough for private pipeline companies to go to court

26

and take private property by eminent domain”). In

this case, for example, petitioner filed the

condemnation complaints in federal court less than a

month after FERC granted it a certificate of public

convenience and necessity. J.A. 26, 35. But FERC did

not issue its order on rehearing, thereby allowing

judicial review, until more than six months later. J.A.

213; see also Petition for Judicial Review, Del.

Riverkeeper Network v. FERC, No. 18-1128 (D.C. Cir.

filed May 9, 2018).

The procedural history of this case illustrates the

untenable position that the States would face if this

Court were to accept the jurisdictional argument

advanced by the United States. A State might still be

asserting its sovereign immunity through the

rehearing and review process while at the same time

having its sovereignty violated in a separate

condemnation action where it had no opportunity to

litigate that question.

It also makes little practical sense to require the

State to litigate its immunity in the FERC

proceeding, because condemnation suits are not an

inevitable result of those proceedings. Negotiations

between the certificate holder and the State may

result in the State agreeing to provide the easement

in exchange for just compensation or mitigation of

harm to the public lands. In those circumstances,

there is no immunity issue to resolve. Litigating

immunity issues before FERC and the reviewing

court because of the possibility that there will be

condemnation proceedings is a significant, and

unnecessary, expenditure of resources.

27

The United States’ argument finds no support

from City of Tacoma v. Taxpayers of Tacoma, 357

U.S. 320 (1958). (U.S. Br. 11). In that case, the city

had obtained a license from the Federal Power

Commission to construct a hydroelectric dam that

would flood a state-owned fish hatchery. The State

later objected to the city’s authority to construct a

dam when, in a separate state-court proceeding, the

city sought to sell revenue bonds to finance the

construction of the dam. Id. at 330. This Court held

that the State could not raise that objection in the

state-court proceedings. The Federal Power Act, like

the NGA, granted the federal court of appeals

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

an order of the Commission. Id. at 335 (quoting 16

U.S.C. § 825l(b)). This Court concluded that the

State’s argument was a collateral challenge to the

Commission’s order approving the project.

The State’s sovereign immunity from suit was not

at issue in City of Tacoma. The city had not haled the

state into court. Rather, the underlying action was a

state court proceeding “seeking a judgment declaring

valid a large issue of revenue bonds” by the city. City

of Tacoma, 357 U.S. at 329. The State chose to appear

in that proceeding and object to the bonds. Nothing

this Court said addressed the State’s immunity from

suit.

And unlike the argument in City of Tacoma, the

argument advanced by respondents here is not a

collateral challenge to the federal agency’s decision to

authorize the project. Rather, it is an independent

assertion of the State’s sovereign right not to be haled

into federal court by a private party. Although the

28

FERC certificate vested petitioner with authority to

exercise eminent domain power over privately owned

lands, it did not and could not abrogate the State’s

sovereign immunity from suit. Immunity became an

issue only when petitioner filed this action against

respondents in federal court.

Nor does the logic of City of Tacoma require a

State to assert its immunity against some

speculative, future lawsuit in separate proceedings

before a federal administrative agency. The issue in

that case was whether the State could challenge the

city’s authority to proceed with the project at all. The

State’s argument in state court was that, despite the

Commission’s issuance of a license to the city to

construct the dam, the project conflicted with state

law and so the city could not proceed with it. That

challenge went to the very heart of what the

Commission had authorized—building the dam.

Respondents here do not challenge petitioner’s

authority to build a pipeline; they challenge

petitioner’s authority to hale them into court to take

their property without the State’s consent.

When respondents were sued in federal district

court, they were entitled to assert their sovereign

immunity. Even if the NGA purported to abrogate the

States’ right to do so, that abrogation itself would

violate fundamental principles of state sovereignty

and federalism.

29

CONCLUSION

This Court should affirm the judgment of the

Court of Appeals.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General of

Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

PAUL L. SMITH

Deputy Solicitor General

JONA J. MAUKONEN

PHILIP M. THOENNES

INGE D. WELLS

Assistant Attorneys

General

1162 Court Street NE

Salem, OR 97301

(503) 378-4402

benjamin.gutman

@doj.state.or.us

KATHLEEN JENNINGS

Attorney General of

Delaware

820 N. French Street

Wilmington, DE 19801

MATTHEW RODRIQUEZ

Acting Attorney General

of California

1300 I Street Ste. 1740

Sacramento, CA 95814

AARON M. FREY

Attorney General of

Maine

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Augusta, ME 04333

WILLIAM TONG

Attorney General of

Connecticut

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Hartford, CT 06106

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Attorney General of

Maryland

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Baltimore, MD 21202

CLARE E. CONNORS

Attorney General of

Hawaiʻi

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KWAME RAOUL

Attorney General of

Illinois

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Street

Chicago, IL 60601

30

MAURA HEALEY

Attorney General

Commonwealth of

Massachusetts

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Boston, MA 02108

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Attorney General of

Michigan

P.O. Box 30212

Lansing, MI 48909

KEITH ELLISON

Attorney General of

Minnesota

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Luther King Jr. Blvd.

St. Paul, MN 55155

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Attorney General of

Nevada

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Attorney General of

New Mexico

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Attorney General of

New York

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Attorney General of

North Carolina

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Attorney General of

Rhode Island

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Attorney General of

Vermont

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Virginia

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Attorney General of

Washington

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Street SE

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April 7, 2021