US Supreme Court justices split along unusual ideological lines in a decision holding that the natural gas pipeline conglomerate PennEast could use federal eminent domain powers to seize land owned by the state of New Jersey.
States “surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution,” Chief Justice John Roberts wrote in the majority opinion handed down on Tuesday. Eminent domain allows the government to confiscate property – with “just compensation” – from private or state owners for projects of public use.
While a 5-4 decision is not unusual for the highest court in the land, it usually features the “liberal” justices and their “conservative” counterparts on opposite sides. This time, however, the six conservative-leaning justices and three liberal-leaning ones ended up all over the place.
In what some legal observers described as an “ideologically scrambled lineup,” Roberts was joined by liberals Stephen Breyer and Sonia Sotomayor as well as conservatives Samuel Alito and Brett Kavanaugh. The dissent was written by Justice Amy Coney Barrett, the most recent addition to the court, who was joined by fellow conservatives Clarence Thomas and Neil Gorsuch, as well as the liberal Elena Kagan.
The consortium behind the PennEast pipeline, which would transport as much as one billion cubic feet of natural gas per day from northern Pennsylvania, sought to use eminent domain to obtain several portions of land owned either by the state or the New Jersey Conservation Foundation. New Jersey argued it could not be sued under the doctrine of sovereign immunity. The SCOTUS majority disagreed.
Roberts pointed to the Natural Gas Act of 1938, amended in 1947, that allowed holders of federal certificates to exercise eminent domain power reserved for the federal government. His opinion said that “structural considerations” support the conclusion that US states consented to federal eminent domain power, even when exercised by “delegatees” such as PennEast.
Barrett argued that this has “no textual, structural, or historical support” and should not be treated differently to any other case under the Commerce Clause of the US Constitution. The court “comes up dry” on any examples of a private party bringing such a suit against a state, she added.
While the decision was met with anger by some Democrats, who objected to building pipelines on climate change grounds, PennEast still has to secure state permits before beginning construction.
The SCOTUS ruling “is not the end of the road in our fight against the PennEast pipeline,” said New Jersey Attorney General Gurbir Grewal. “We still have other, ongoing legal challenges to this proposed pipeline, which is unnecessary and would be destructive to New Jersey lands.”
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