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 A ppeals for the Third Circuit

BRIEF OF THE COUNCIL OF STATE

GOVERNMENTS, THE NATIONAL LEAGUE OF

CITIES, THE U.S. CONFERENCE OF MAYORS, THE

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION AND THE INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

Lisa E. Soronen

Jennifer M. Selendy

Executive Director

Erica R. Iverson

State A nd Local Legal Center Vivek V. Tata*

444 N. Capitol St., N.W., Suite 515 A dam K. Hersh

Selendy & Gay PLLC

Washington, DC 20001

1290 Avenue of the Americas

(202) 434-4845

New York, New York 10104

(212) 390-9000

vtata@selendygay.com

Counsel for Amici Curiae

April 7, 2021

303121

* Counsel of Record

i

QUESTIONS PRESENTED

1. Whether the Natural Gas Act delegates to Federal

Energy Regulatory Commission certificate holders the

authority to exercise the Federal government’s eminent

domain power to condemn land in which a State claims

an interest.

2. Whether the Court of Appeals properly exercised

jurisdiction over the case.

ii

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

Delegation of the Federal Government’s

Em i nent Dom a i n A ut hor it y Wou ld

A llow Private Parties to Trample on

States’ Sovereign Interests . . . . . . . . . . . . . . . . . . 5

II. T h e N G A D o e s N o t R e f l e c t a n

Unmistakably Clear Statement as Required

to Alter the Federal-State Balance . . . . . . . . . . 13

III. Condemnation Actions Against State

Lands Are Major Intrusions on State

Sovereignty, Not “Ministerial” . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Alden v. Maine,

527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ass’n for Protection of the Adirondacks v.

MacDonald,

253 N.Y. 234 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Alameda v. Todd Shipyards Corp.,

635 F. Supp. 1447 (N.D. Cal. 1986) . . . . . . . . . . . . . . 11

Fed. Mar. Comm’n v. S.C. State Ports Auth.,

535 U.S. 743 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 15, 18

Georgia v. Tennessee Copper Co.,

206 U.S. 230 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Gregory v. Ashcroft,

501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

In re Aiken Cty.,

645 F.3d 428 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . . 18

iv

Cited Authorities

Page

Kleppe v. New Mexico,

426 US. 529 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

New York v. United States,

505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PennEast Pipeline Co. v. A Permanent

Easement for 1.86 Acres and Temporary

Easement for 3.82 Acres in Hopewell

Township,

No. 3:18 Civ. 1754, Dkt. 1 (D.N.J. Feb. 7, 2018) . . . . 10

PennEast Pipeline Co. v. A Permanent

Easement for 2.57 Acres and Temporary

Easement for 3.34 Acres in Hopewell

Township,

No. 3:18 Civ. 1937, Dkt. 1 (D.N.J. Feb. 9, 2018) . . . . 10

PennEast Pipeline Co. v. A Permanent

Easement for 5.82 Acres and Temporary

Easement for 4.94 Acres in Hopewell

Township,

No. 3:19 Civ. 1104, Dkt. 1 (D.N.J. Jan. 25, 2019) . . . . 9

People v. Adirondack Ry. Co.,

160 N.Y. 225 (1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

v

Cited Authorities

Page

S. Burlington Cty. N.A.A.C.P. v.

Mount Laurel Twp.,

67 N.J. 151 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Seila Law LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2183 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Solid Waste Agency of N. Cook Cty. v.

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Transcon. Gas Pipe Line Co., LLC v. 6.04

Acres, More or Less, Over Parcel(s) of Land

of Approximately 1.21 Acres, More or Less,

Situated in Land Lot 1049,

910 F.3d 1130 (11th Cir. 2018) . . . . . . . . . . . . . . . . . . . 17

United States v. 1.58 Acres of Land Situated

in the City of Boston, Suffolk Cty., Com. of

Mass.,

523 F. Supp. 120 (D. Mass. 1981) . . . . . . . . . . . . . . . . 11

United States v. 11.037 Acres of Land,

685 F. Supp. 214 (N.D. Cal. 1988) . . . . . . . . . . . . . . . 11

United States v. Bass,

404 U.S. 336 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Carmack,

329 U.S. 230 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vi

Cited Authorities

Page

Vt. Agency of Nat. Res. v.

United States ex rel. Stevens,

529 U.S. 765 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Statutes

15 U.S.C. § 717f(h) . . . . . . . . . . . . . . . . . . . . . . . .2, 4, 13, 17

42 U.S.C. § 7171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Mass. Gen. Laws ch. 184, § 32 . . . . . . . . . . . . . . . . . . . . . 9

Mich. Comp. Laws Ann. § 324.36203 . . . . . . . . . . . . . . . . 9

Mo. Rev. Stat. § 67.880 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Mont. Code Ann. § 2-15-3301 . . . . . . . . . . . . . . . . . . . . . . 9

Mont. Code Ann. § 76-6-206 . . . . . . . . . . . . . . . . . . . . . . . 9

N.J. Stat. Ann. § 13:8B-6 . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Neb. Rev. Stat. § 76-2, 112(3) . . . . . . . . . . . . . . . . . . . . . . 9

Tenn. Code Ann. § 11-15-107 . . . . . . . . . . . . . . . . . . . . . . . 9

Tenn. Code Ann. § 11-15-108 . . . . . . . . . . . . . . . . . . . . . . . 9

vii

Cited Authorities

Page

Va. Code Ann. §§ 10.1-1700–1075 . . . . . . . . . . . . . . . . . . . 9

Wash. Rev. Code § 89.08.070 . . . . . . . . . . . . . . . . . . . . . . . 9

Other Authorities

Barton H. Thompson, Jr., Environmental

Poli c y a n d St a t e Co n s ti t u ti o n s: T h e

Potential Role of Substantive Guidance,

27 Rutgers L.J. 863 (1996) . . . . . . . . . . . . . . . . . . . . . . 6

Jesse J. Richardson Jr. & Amanda C. Bernard,

Zo nin g fo r Co n se r v a ti o n Ea se m e n t s,

74 L. & Contemp. Probs. 83 (2011) . . . . . . . . . . . . . . . 9

N.J. Dep’t of Envtl. Prot., State Acquisition

Project Areas, Green Acres Program, (Aug.

18, 2020), https://www.nj.gov/dep/greenacres/

currentstate.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rules

Fed. R. Civ. P. 71.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

State Constitutions

Ala. Const. art. XI, § 219.07(1) . . . . . . . . . . . . . . . . . . . . . 6

Cal. Const. art. I, § 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

viii

Cited Authorities

Page

Cal. Const. art. X, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Colo. Const. art. XVIII, § 6 . . . . . . . . . . . . . . . . . . . . . . . . 6

Colo. Const. art. XXVII, § 1 . . . . . . . . . . . . . . . . . . . . . . . 7

Fla. Const. art. II, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fla. Const. art. X, § 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fla. Const. art. X, § 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Haw. Const. art. XI, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Const. art. XI, § 9 . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Idaho Const. art. XV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ill. Const. art. XI, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

La. Const. art. IX, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Mass. Const. art. XCVII . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Mich. Const. art. IV, § 52 . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Minn. Const. art. XIII, § 12 . . . . . . . . . . . . . . . . . . . . . . . 6

Mo. Const. art. III, § 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mont. Const. art. II, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

ix

Cited Authorities

Page

N.C. Const. art. XIV, § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 6

N.M. Const. art. XX, § 21 . . . . . . . . . . . . . . . . . . . . . . . 6, 7

N.Y. Const. art. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 7

N.Y. Const. art. XIV, § 3 . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

N.Y. Const. art. XIV, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ohio Const. art. VIII, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . 6

Okla. Const. art. XXVI . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ore. Const. art. XI, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

P.R. Const. art. VI, § 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Pa. Const. art. I, § 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

R.I. Const. art. I, § 17 . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Utah Const. art. XVIII, § 1 . . . . . . . . . . . . . . . . . . . . . . . . 6

Utah Const. art. XX, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Va. Const. art. XI, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Va. Const. art. XI, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1

INTEREST OF AMICI CURIAE1

The following State and local government associations

respectfully submit this amici curiae brief in support of

respondents:

The Council of State Governments (“CSG”) is the

Nation’s only organization serving all three branches

of State government. CSG is a region-based forum that

fosters the exchange of insights and ideas to help State

officials shape public policy. This offers unparalleled

regional, national, and international opportunities to

network, develop leaders, collaborate, and create problemsolving partnerships.

The National League of Cities (“NLC”) is the

oldest and largest organization representing municipal

governments throughout the United States. Its mission is

to strengthen and promote cities as centers of opportunity,

leadership, and governance. Working in partnership with

forty-nine State municipal leagues, NLC serves as a

national advocate for more than 19,000 cities and towns,

representing more than 218 million Americans.

The U.S. Conference of Mayors (“USCM”), founded

in 1932, is the official nonpartisan organization of all

United States cities with a population of more than 30,000

people, which includes over 1,400 cities at present. Each

1. Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae states that no counsel for a party authored this brief in

whole or in part, and no person or entity other than amici curiae

or their counsel made a monetary contribution to this brief’s

preparation or submission. All parties have consented to the filing

of this brief.

2

city is represented in the USCM by its chief elected

official, the mayor.

The International City/County Management

Association (“ICMA”) is a nonprofit professional and

educational organization of over 9,000 appointed chief

executives and assistants serving cities, counties, towns,

and regional entities. ICMA’s mission is to create excellence

in local governance by advocating and developing the

professional management of local governments throughout

the world.

The International Municipal Lawyers Association

(“IMLA”) is a non-profit professional organization of over

2,500 local government attorneys. Since 1935, IMLA has

served as a national, and now international, resource

for legal information and cooperation on municipal legal

matters. Its mission is to advance the development of just

and effective municipal law and to advocate for the legal

interests of local governments. It does so in part through

extensive amicus briefing before the U.S. Supreme Court,

the U.S. Courts of Appeals, and state supreme and

appellate courts.

Amici offer additional reasons why this Court should

affirm the Third Circuit’s holding that Natural Gas Act

§ 717f(h), 15 U.S.C. § 717f(h), does not permit private

parties to condemn state lands. Amici have a strong

interest in preserving State and local control over States’

natural resources, including State lands. State and local

governments regularly act on behalf of their citizens

to preserve or develop lands for specific uses including

agriculture, education, energy development, or recreation.

The interpretation of the Natural Gas Act advanced by

3

PennEast and by the United States would disrupt the

balance of power between the Federal government and

States with respect to State resources. Although States

will defer to the Federal government when it acts in the

national interest to take State lands, they expect the

exercise of that authority to be limited and subject to

political correction.

Amici have a strong interest in preserving this

Court’s long-standing limitations on such takings.

SUMMARY OF THE ARGUMENT

The Constitution establishes a careful balance between

Federal and State authority, preserving the integrity,

dignity, and residual sovereignty of the States. In certain

circumstances, the Constitution permits Congress to

alter the balance between the Federal government and

the States. This Court will not, however, assume that

a statute makes such a fundamental change unless the

statutory language is unmistakably clear that Congress

intended to do so.

Allowing private parties to invoke the Federal

government’s authority to condemn State lands would

dramatically alter the Federal-State balance. States

have a sovereign prerogative—and in many cases, a

constitutional obligation—to preserve, manage, and

control State land for the benefit of their citizens. To carry

out those mandates and develop workable plans for land

use, States and localities rely on the stability of State

property interests.

4

If the Federal government seeks to disrupt those

interests by exercising any authority it might have to

take State lands, it ordinarily faces political constraints

and public scrutiny. For example, the Federal sovereign

must litigate any condemnation proceeding in open court,

declaring publicly that it is the source of encroachment

on State lands. Even prior to instituting a condemnation

action, Congress must legislate clearly that it intends to

take State lands, opening up any potential taking to the

political process. Channeling the Federal government’s

eminent domain decisions through the political process

gives States protection from encroachments on their

sovereignty and preserves the carefully crafted balance

between State and Federal interests.

Against these longstanding principles, PennEast

and the United States argue that § 717f(h) of the Natural

Gas Act (“NGA”) authorizes private parties to stand in

the shoes of the Federal government and condemn State

lands—but the statute says nothing of the sort. The

Third Circuit correctly recognized that adopting this

interpretation would encroach on State sovereignty, and

correctly rejected PennEast’s position because § 717f(h)

does not include any “clear statement” of Congressional

intent to delegate its power to sue States to private

parties.

PennEast and the United States respond that

Congress’s silence as to State lands in the NGA constitutes

a satisfactorily clear statement that Congress intended to

allow private parties to step into the shoes of the Federal

sovereign and exercise eminent domain authority—free

from political accountability—over State lands. But

this inverts the “clear statement” rule, which requires

5

Congress to state unequivocally when it intends to disrupt

the Federal-State balance. The NGA includes no such

clear statement.

To overcome deficiencies in its statutory argument,

PennEast proposes a novel exception to the Eleventh

Amendment’s barrier to private party suits against

States. PennEast and the United States argue that a

condemnation suit is merely a “ministerial” byproduct of

the federal government’s exercise of eminent domain—but

there is no “ministerial suit” exception to the Eleventh

Amendment. And this argument ignores the reality of

condemnation actions, which substantially intrude on

sovereignty and involve all the trappings of civil litigation,

including a trial by jury. Private parties should not be

permitted to use this mechanism to upend carefully

negotiated State and local land use plans, without any

clear Congressional authorization.

ARGUMENT

I.

Delegation of the Federal Government’s Eminent

Domain Authority Would Allow Private Parties to

Trample on States’ Sovereign Interests

PennEast and the United States interpret the NGA

to permit the Federal government to delegate its eminent

domain authority to a private party. Pet. Br. 30–31; SG Br.

30. This delegation theory would infringe on fundamental

attributes of State sovereignty, including State and local

governments’ inherent authority to manage land for the

benefit of their citizens—and would allow private parties

to take State lands free from the accountability constraints

that otherwise influence the Federal sovereign’s direct

exercise of its powers.

6

As this Court has recognized, each State has a

unique and fundamental interest in the land within its

borders—“an interest independent of and behind the titles

of its citizens, in all the earth and air within its domain.

It has the last word as to whether its mountains shall be

stripped of their forests and its inhabitants shall breathe

pure air.” Georgia v. Tennessee Copper Co., 206 U.S. 230,

237 (1907). But if PennEast and the United States prevail,

and the NGA is interpreted to allow private parties to

condemn State lands, then private interests will have the

power to permanently alter a State’s lands and override

its considered judgment regarding land use.

Natural resource management is so fundamental to

States that at least thirty-two States and Puerto Rico have

constitutional provisions governing their environmental

and natural resources, including the preservation of State

lands. See Barton H. Thompson, Jr., Environmental

Policy and State Constitutions: The Potential Role of

Substantive Guidance, 27 Rutgers L.J. 863, 867 (1996).

These provisions set forth State-level policies affecting

resource conservation, preservation of agricultural and

natural resources, wildlife management, and forest

conservation. Some guarantee clean water or air and grant

related environmental rights to State citizens. 2

2. Ala. Const. art. XI, § 219.07(1); Cal. Const. art. X, § 2;

Colo. Const. art. XVIII, § 6; Fla. Const. art. II, § 7; Haw. Const.

art. XI, § 9; Idaho Const. art. XV, § 1; Ill. Const. art. XI, § 2; La.

Const. art. IX, § 1; Mass. Const. art. XCVII; Mich. Const. art.

IV, § 52; Minn. Const. art. XIII, § 12; Mo. Const. art. III, § 37;

Mont. Const. art. II, § 3; N.M. Const. art. XX, § 21; N.Y. Const.

art. XIV, §§ 3–4; N.C. Const. art. XIV, § 5; Ohio Const. art. VIII,

§ 2; Ore. Const. art. XI, § 2; Pa. Const. art. I, § 27; P.R. Const.

art. VI, § 19; R.I. Const. art. I, § 17; Utah Const. art. XVIII, § 1;

Va. Const. art. XI, § 2.

7

For example, State constitutions require the

protection of agricultural lands, e.g., Haw. Const. art. XI,

§ 3; preserve the public’s right to fish on public lands, even

if they are sold, Cal. Const. art. I, § 25; grant the State

ownership of its beaches to hold in trust for public benefit,

Fla. Const. art. X, § 11; and provide for land to be used

to benefit state educational institutions, Utah Const. art.

XX, § 2. Other States require their legislatures to enact

legislation to advance particular land use aims, such as to

protect natural resources, e.g., Colo. Const. art. XXVII,

§ 1; La. Const. art. IX, § 1; N.M. Const. art. XX, § 21,

or to preserve their historical sites and buildings, Va.

Const. art. XI, § 1. The constitutions of Hawaii, Illinois,

Massachusetts, Montana, Pennsylvania, and Rhode Island

all contain Environmental Rights Amendments, providing

their citizens with an individual right to clean air and

water and the preservation of natural resources. Haw.

Const. art. XI, § 9; Ill. Const. art. XI, § 2; Mass. Const.

art. XCVII; Mont. Const. art. II, § 3; Pa. Const. art. I,

§ 27; R.I. Const. art. I, § 17.

The constitutions of at least two States—New York

and Florida—include intricate conservation policies that

could be severely disrupted if the Federal government

could simply delegate to private parties its authority

to override States’ decisions about their own natural

resources. The New York constitution includes a provision

prohibiting the “lease[], [sale] or exchange[], or [] tak[ing]

by any corporation, public or private” of certain Stateowned forest preserves, N.Y. Const. art. XIV, §§ 1, 3,

and the State courts have developed an array of rules

regarding ownership and land use to implement this

constitutional protection, see, e.g., Ass’n for Protection of

the Adirondacks v. MacDonald, 253 N.Y. 234, 242 (1930)

8

(use of timber in preserved forest prohibited); People v.

Adirondack Ry. Co., 160 N.Y. 225, 248 (1899) (railroad

company lacked authority to condemn preserved State

lands through eminent domain); N.Y. O.A.G. Informal Op.

2002-1 (Jan. 8, 2002), 2002 WL 188493, at *1 (restrictions

on use of all-terrain vehicles on county-owned reforested

lands). The Florida constitution similarly provides that

any “fee interest in real property held by an entity of the

state and designated for natural resources conservation

purposes” must be “managed for the benefit of the citizens

of this state and may be disposed of only if the members of

the governing board of the entity holding title determine

the property is no longer needed for conservation

purposes[.]” Fla. Const. art. X, § 18.

In implementing those constitutional commands,

States manage their natural resources through extensive

statutory and regulatory schemes, with close coordination

between State and local governments. They make

considered decisions to use different types of property

interests—from limited, local easements to broader

categor ical reg ulations —to manage a var iety of

State priorities, including agricultural, historical, and

ecological concerns. These decisions go to the heart of

local governance. In New Jersey, for example, the State

collaborates with local governments to acquire easements

to help maintain beaches and backwoods for recreation,

preserve historical sites and farmland, and improve

fishing in the State’s rivers. See N.J. Dep’t of Envtl. Prot.,

State Acquisition Project Areas, Green Acres Program,

(Aug. 18, 2020), https://www.nj.gov/dep/greenacres/

currentstate.html. Many other States pursue similar

goals alongside their localities. See, e.g., Okla. Const. art.

XXVI (establishing department of wildlife conservation,

9

which administers private land access program); Mont.

Code Ann. § 2-15-3301 (establishing department of natural

resources and conservation); Wash. Rev. Code § 89.08.070

(defining duties of State Conservation Commission to

include coordination among local conservation districts).

Local governments depend on the stability of their

States’ property interests. Uncertainty about land use

priorities inhibits local government efforts to develop

zoning plans and other land use policies tailored to the

community. States, too, understand the importance

of their sovereign land use decisions to localities, and

for that reason, State law often requires the State to

work with, or even seek approval of, local governments

before obtaining easements. 3 See Jesse J. Richardson

Jr. & Amanda C. Bernard, Zoning for Conservation

Easements, 74 L. & Contemp. Probs. 83, 91–96 (2011).

The efforts of New Jersey counties and municipalities

in this case exemplify that process. Hopewell Township,

a rural New Jersey community, engaged in intensive

planning and negotiation to create a recreational area for

hiking on Baldpate Mountain, working with the State and

Mercer County to coordinate funding and the acquisition

of easements. PennEast’s condemnation action disrupts

that plan. See PennEast Pipeline Co. v. A Permanent

Easement for 5.82 Acres and Temporary Easement for

4.94 Acres in Hopewell Township, No. 3:19 Civ. 1104,

Dkt. 1 (D.N.J. Jan. 25, 2019). PennEast also upended the

collaborative effort by the township and New Jersey to

3. E.g., Mass. Gen. Laws ch. 184, § 32; Mich. Comp. Laws

Ann. § 324.36203(2)(b); Mo. Rev. Stat. § 67.880; Mont. Code Ann.

§ 76-6-206; Neb. Rev. Stat. § 76-2, 112(3); N.J. Stat. Ann. § 13:8B6; Tenn. Code Ann. §§ 11-15-107(a), 11-15-108(b); Va. Code Ann.

§§ 10.1-1700–1075.

10

preserve family farmland, PennEast Pipeline Co. v. A

Permanent Easement for 1.86 Acres and Temporary

Easement for 3.82 Acres in Hopewell Township, No.

3:18 Civ. 1754, Dkt. 1 at 161 (D.N.J. Feb. 7, 2018); and to

acquire land to meet its State constitutional obligation

to provide affordable housing, PennEast Pipeline Co. v.

A Permanent Easement for 2.57 Acres and Temporary

Easement for 3.34 Acres in Hopewell Township, No.

3:18 Civ. 1937, Dkt. 1 (D.N.J. Feb. 9, 2018); see also S.

Burlington Cty. N.A.A.C.P. v. Mount Laurel Twp., 67

N.J. 151, 179 (1975).

The situation in Hopewell Township exemplifies

the disruption that results from subordinating States’

sovereign land use priorities to private interests. For this

precise reason, the eminent domain power is ordinarily

reserved for Congress in limited contexts. Otherwise,

private parties could disrupt carefully considered State

regulations and policies—effectively nullifying the

protections provided by State constitutions, laws, and

promises to their local governments. To allow a private

party to exercise the Federal government’s eminent

domain power in this way would intrude substantially on

State sovereignty.

PennEast’s reading of the NGA countenances precisely

that type of intrusion. Following PennEast’s theory, if the

Federal Energy Regulatory Commission (“FERC”) issues

a pipeline company a certificate of public convenience,

the company can file a condemnation action even though

such a taking would otherwise be contrary to the State’s

resource-management statutes and regulations—or

even its constitution. Ordinarily, the Federal government

relies on the Supremacy Clause and, for purposes of

filing a condemnation action against a State, its Eleventh

11

Amendment exception to take State lands. See United

States v. Carmack, 329 U.S. 230, 239–41 (1946) (principles

of Federal government’s supreme authority underscore

that “the supremacy of a federal public use over all other

uses” of land); see also Kleppe v. New Mexico, 426 US. 529,

543 (1976) (Congressional legislation enacted pursuant

to Property Clause authority preempts conf licting

state legislation).4 Those powers belong to the Federal

government, which derives its sovereignty from, and is

ultimately accountable to, the People. Martin v. Hunter’s

Lessee, 14 U.S. 304, 324–25 (1816). Private parties enjoy

no such constitutional leverage over State lands. Yet,

per PennEast’s delegation theory, a FERC certificate of

public convenience cloaks its private bearer with the same

constitutional powers the federal sovereign enjoys when

it exercises eminent domain directly.

Nor does PennEast’s novel delegation theory stop

with the NGA. If the Court adopted PennEast’s position,

4. Even the Federal government may be restricted by State

law when seeking to take State lands held in the public trust

because that trust can only “be destroyed by destruction of the

sovereign.” United States v. 1.58 Acres of Land Situated in the City

of Boston, Suffolk Cty., Com. of Mass., 523 F. Supp. 120, 124–25

(D. Mass. 1981) (authorizing Federal taking of State land held in

public trust subject to same “restrict[ions]” that State sovereign

had as public trustee); City of Alameda v. Todd Shipyards Corp.,

635 F. Supp. 1447, 1450 (N.D. Cal. 1986) (“[T]he United States

acquired this portion subject to the public trust, and the United

States may not convey this portion to a private party.”). But see

United States v. 11.037 Acres of Land, 685 F. Supp. 214, 217 (N.D.

Cal. 1988) (refusing to “subjugate” the federal government’s

eminent domain power to the public trust interests of the State in

light of Supremacy Clause). Allowing a private party to exercise

authority that is fraught even in the Federal context would pose

a greater danger to State sovereign interests.

12

Congress could delegate its eminent domain authority in

any number of situations, effectively federalizing intraState land use decisions across the nation. Power lines,

sewage transport facilities, water pipes, nuclear power

plants, landfills, wind farms—these are just a handful

of the types of projects that could disrupt, or whose

development could be disrupted by, private parties armed

with Federal condemnation power.

When State lands are taken for an ostensibly public

purpose, it is imperative that the parties, courts, and

bystanders alike understand that the Federal government

seeks to assert its supreme authority and impose a

national priority on the State. But PennEast’s position

would shield the Federal government from accountability

for its disruption of State sovereignty by allowing it to

delegate its eminent domain power. Where the interests at

issue include, as they do here, farmland and agricultural

easements, environmental preserves, and water resources,

the traditional recourse afforded to owners of condemned

parcels—just compensation—does not sufficiently

preserve State interests. No compensation can account for

the loss of the State’s ability to preserve its agricultural

industry, forests, or wildlife. Indeed, the very purpose

of the constitutional and statutory provisions detailed

above is to channel market forces to avoid disrupting

States’ long-term resource management. The State cannot

take whatever compensation the private party provides

and purchase a new forest or lake or ecosystem. States

and localities can only depend on the political process to

protect these policy interests—and the political process

cannot function appropriately when delegation of Federal

authority blurs otherwise clear lines of accountability.

13

II. The NGA Does Not Reflect an Unmistakably Clear

Statement as Required to Alter the Federal-State

Balance

If Congress can authorize a private party to invoke

the Federal courts’ power to intrude on these interests—

which is doubtful, since this sovereignty arises “from the

Constitution”—it must state its purpose clearly in the

language of the statute, so that States and voters know

who is responsible for the encroachment.

PennEast and the United States do not even attempt

to find a clear statement in the NGA authorizing litigation

against States. The relevant provision, Section 717f(h),

states only that the holder of a certificate of public

convenience and necessity may acquire land or rights of

way from “the owner of 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). The

ordinary rules of statutory interpretation do not warrant

the extension of this provision to sovereign States. To

the contrary, the Court has applied a “longstanding

interpretive presumption that ‘person’ does not include

the sovereign,” because “both comity and respect for our

federal system demand that something more than mere

use of the word ‘person’ demonstrate the federal intent

to authorize unconsented private suit against them.” Vt.

Agency of Nat. Res. v. United States ex rel. Stevens, 529

U.S. 765, 780 & n.9 (2000). The equally generic term

“owner” should be similarly construed. If anything,

Congress’s silence as to States is a clear indication that it

never intended to work a major alteration of the FederalState balance by delegating eminent domain authority

over State lands.

14

PennEast’s interpretation of the NGA would radically

alter the Federal-State balance by permitting a private

party to hale States into Federal court to take State lands.

For that reason, the Court should apply “the ordinary

rule of statutory construction” that “if Congress intends

to alter the usual constitutional balance between States

and the Federal Government, it must make its intentions

to do so unmistakably clear in the language of the statute.”

Stevens, 529 U.S. at 787 (quoting Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 65 (1989)).

PennEast attempts to untangle delegation of the

Federal government’s power to sue States from the

abrogation of State sovereign immunity, asserting that no

clear statement is required for the former. Pet. Br. 31–34.

The United States echoes that purported distinction. SG

Br. 22. But whether subjecting States to private lawsuits

is framed as abrogating State sovereign immunity or

delegating the Federal government’s exemption from

that immunity, the result is the same: a target State

will be subjected to a condemnation suit brought by a

private party. A clear statement of Congressional intent is

required to authorize that result. The Court explained as

much in Stevens, where it held that the False Claims Act

did not authorize lawsuits against States because it lacked

unmistakably clear language granting that authority,

529 U.S. at 787, even though the qui tam relator argued

that he was acting as a “partial assignee” of the Federal

government and suing to vindicate the interests of the

United States as delegated to him, id. at 771, 773 n.4.

The clear statement rule applies forcefully in the

Eleventh Amendment context, but the Court has made

it clear that it is not limited to that context. Instead,

15

it applies whenever “Congress intends to alter the

‘usual constitutional balance between the States and

the Federal Government.’” Will, 491 U.S. at 65 (quoting

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242

(1985)). Unmistakably clear language is also required,

for example, when Congress “intends to pre-empt the

historic powers of the States” or “intends to impose a

condition on the grant of federal moneys.” Id. This is

because the primary way our federal system protects

State sovereignty is through the political process. See

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528, 556 (1985). For that process to work as intended, the

States, their citizens, and their representatives must be

able to understand when a law threatening the FederalState balance is up for debate, and elected officials must

accept political accountability for any law that does seek to

alter that balance. Gregory v. Ashcroft, 501 U.S. 452, 464

(1991). Accordingly, “the requirement of clear statement

assures that the legislature has in fact faced, and intended

to bring into issue, the critical matters involved in the

judicial decision.” United States v. Bass, 404 U.S. 336,

349 (1971).

The need for an unmistakably clear statement by

Congress is especially pressing in this case, which

implicates “the allocation of scarce resources among

competing needs and interests” that “lies at the heart

of the political process.” Alden v. Maine, 527 U.S. 706,

751 (1999). Forcing States to sell carefully managed

resources to private parties “strikes at the heart of the

political accountability so essential to our liberty and

republican form of government.” Id.; cf. New York v.

United States, 505 U.S. 144, 169 (1992) (“Accountability

is . . . diminished when, due to federal coercion, elected

16

state officials cannot regulate in accordance with the

views of the local electorate in matters not pre-empted

by federal regulation.”).

III. Condemnation Actions Against State Lands

Are Major Intrusions on State Sovereignty, Not

“Ministerial”

PennEast argues that the Court should ignore the

fundamental importance of State and local land use policy

and set aside ordinary clear statement rules on the theory

that condemnation actions are exempt from the normal

rules governing State sovereignty. PennEast argues

that condemnation actions against States are merely

“ministerial,” Pet. Br. 40, because such lawsuits can be

brought only after a FERC order authorizes a pipeline

route crossing State lands. But FERC’s involvement does

not remove the affront to State dignity or the disruption of

land use policies brought about by a condemnation action.

PennEast asserts that the actual decision to take State

lands is made when FERC approves a certificate of public

convenience and necessity authorizing a pipeline route

that crosses state lands, and that process of invoking

Federal judicial power to force a State to turn over its

property is a merely “ministerial” afterthought. Pet. Br.

38–40. But this position misunderstands the process of

condemning State land under the NGA, and would result

in even greater impingements on State sovereignty by

essentially forcing States to appear before FERC.

FERC’s approval of a pipeline route does not cause

any transfer of property rights or directly lead to any

litigation. Instead, a certificate of public convenience and

necessity authorizes its holder to pursue a condemnation

17

action if it “cannot acquire by contract” necessary rights

of way or is “unable to agree with the owner of property

to the compensation to be paid” for such rights of way.

15 U.S.C. § 717f(h). The decision to initiate litigation and

the manner of prosecuting any suit is left entirely in

the hands of the private certificate holder. As the Third

Circuit pointed out, “PennEast filed suit in its own name;

PennEast will gain title to the land; there is no special

statutory mechanism for the federal government to

intervene in NGA condemnation actions; and PennEast

maintains sole control over the suits.” Pet. App. 23. Indeed,

as the timing of the condemnation actions in this case

illustrates, a certificate holder need not even wait for

FERC to resolve a petition for rehearing before suing to

condemn State lands. J.A. 35, J.A. 334, Pet. App. 5.

Nor is a condemnation action a trivial affair. The

plaintiff hales the property owner into court through

service of process. Fed. R. Civ. P. 71.1(d). In several

circuits, the plaintiff may move for a preliminary

injunction, forcing expedited litigation. See Transcon.

Gas Pipe Line Co., LLC v. 6.04 Acres, More or Less, Over

Parcel(s) of Land of Approximately 1.21 Acres, More or

Less, Situated in Land Lot 1049, 910 F.3d 1130, 1152 (11th

Cir. 2018) (collecting cases). The defendant must appear

and defend itself, on pain of waiving any objections or

defenses not asserted. Fed. R. Civ. P. 71.1(e). The parties

then litigate much in the manner of an ordinary Federal

lawsuit, including proceeding to a trial by jury if any

party demands it. Fed. R. Civ. P. 71.1(h). The end result,

of course, is a judicial order extinguishing the defendant’s

property interest and setting monetary compensation.

The Eleventh Amendment expressly prevents States from

being subjected to these sorts of proceedings in almost

18

every context. And the intrusion on State sovereignty is

greater than usual in this context because condemnation

actions deprive the State of the right to manage its own

land for the benefit of its people.

PennEast and the United States’ suggestion that

FERC should be the forum for States to defend their

sovereign interests only compounds the infringement of

State sovereignty. As a multi-member independent agency,

42 U.S.C. § 7171(b)(1), FERC is “independent . . . from

pre sident i a l cont rol a nd t hus f rom democ r at ic

accountability.” In re Aiken Cty., 645 F.3d 428, 441 (D.C.

Cir. 2011) (Kavanaugh, J., concurring); see also Seila Law

LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2212

(2020) (Thomas, J., concurring in part and dissenting in

part) (“Independent agencies wield substantial power with

no accountability to either the President or the people.”).

FERC, by design, is not susceptible to the political process

that serves as States’ primary protection from Federal

intrusion. See Garcia, 469 U.S. at 556; Gregory, 501 U.S.

at 464; see also Solid Waste Agency of N. Cook Cty. v.

U.S. Army Corps of Engineers, 531 U.S. 159, 172–73,

(2001) (holding that agencies are rarely empowered to

“alter[] the federal-state framework by permitting federal

encroachment upon a traditional state power”).

Moreover, if, as PennEast and the United States

contend, FERC’s decision is sufficient to deprive a

nonconsenting State of its property interests, it would

effectively force States to appear before the agency

to defend their rights. But the Eleventh Amendment

prohibits compelling States to participate in agency

proceedings that will finally determine their rights when

sovereign immunity would protect the States from having

19

to litigate those rights in court. Fed. Mar. Comm’n v. S.C.

State Ports Auth., 535 U.S. 743, 763–64 (2002).

CONCLUSION

For the foregoing reasons, the Court should affirm

the judgment of the Third Circuit.

Respectfully submitted,

Lisa E. Soronen

Executive Director

State And Local Legal Center

444 N. Capitol St., N.W., Suite 515

Washington, DC 20001

(202) 434-4845

Jennifer M. Selendy

Erica R. Iverson

Vivek V. Tata*

A dam K. Hersh

Selendy & Gay PLLC

1290 Avenue of the Americas

New York, New York 10104

(212) 390-9000

vtata@selendygay.com

Counsel for Amici Curiae

April 7, 2021

* Counsel of Record