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In re PennEast Pipeline Co., LLC

United States Court of Appeals for the Third Circuit

June 10, 2019, Argued; September 10, 2019, Filed

Nos. 19-1191 thru 19-1232

Opinion

 [*99]  OPINION OF THE COURT

JORDAN, Circuit Judge.

] The Natural Gas Act ("NGA"), 15 U.S.C. §§ 717-717z, allows private gas companies to exercise the federal government's power to take property by eminent domain, provided certain jurisdictional requirements are met. This appeal calls on us to decide whether that delegation of power allows gas companies to hale unconsenting States into federal court to condemn State property interests.

PennEast Pipeline Company ("PennEast") is scheduled to build a pipeline through Pennsylvania and New Jersey. The company obtained federal approval for the project [**3]  and promptly sued pursuant to the NGA to condemn and gain immediate access to properties along the pipeline route. Forty-two of those properties are owned, at least in part, by the State of New Jersey or various arms of the State. New Jersey sought dismissal of PennEast's condemnation suits for lack of jurisdiction, citing the Eleventh Amendment to the United States Constitution, and, separately, arguing that PennEast failed to satisfy the jurisdictional requirements of the NGA. Broadly speaking, the Eleventh Amendment recognizes that States enjoy sovereign immunity from suits by private parties in federal court. New Jersey has not consented to PennEast's condemnation suits, so those legal proceedings can go forward only if they are not barred by the State's immunity. The District Court held that they are not barred and granted PennEast orders of condemnation and preliminary injunctive relief for immediate access to the properties. New Jersey has appealed.

We will vacate because New Jersey's sovereign immunity has not been abrogated by the NGA, nor has there been — as PennEast argues — a delegation of the federal government's exemption from the  [*100]  State's sovereign immunity. The federal government's power of eminent domain and its power to hale sovereign [**4]  States into federal court are separate and distinct. In the NGA, Congress has delegated the former. Whether the federal government can delegate its power to override a State's Eleventh Amendment immunity is, however, another matter entirely. While there is reason to doubt that, we need not answer that question definitively since, even if a delegation of that sort could properly be made, nothing in the text of the NGA suggests that Congress intended the statute to have such a result. PennEast's condemnation suits are thus barred by the State's Eleventh Amendment immunity. We will therefore vacate the District Court's order with respect to New Jersey's property interests and remand the matter for the dismissal of any claims against New Jersey.

I. BACKGROUND

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938 F.3d 96 *; 2019 U.S. App. LEXIS 27254 **; 49 ELR 20150; 2019 WL 4265190

In re: PENNEAST PIPELINE COMPANY, LLC;STATE OF NEW JERSEY; NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; NEW JERSEY STATE AGRICULTURE DEVELOPMENT COMMITTEE; DELAWARE & RARITAN CANAL COMMISSION; NEW JERSEY WATER SUPPLY AUTHORITY; NEW JERSEY DEPARTMENT OF TRANSPORTATION; NEW JERSEY DEPARTMENT OF THE TREASURY; NEW JERSEY MOTOR VEHICLE COMMISSION, Appellants

Subsequent History: Counsel Amended September 11, 2019.

Counsel Amended September 19, 2019.

Petition for certiorari filed at, 02/18/2020

Prior History:  [**1] On Appeal from the United States District Court for the District of New Jersey. (D.C. Nos. 3-18-cv-01597, 3-18-cv-01603, 3-18-cv-01638, 3-18-cv-01643, 3-18-cv-01668, 3-18-cv-01669, 3-18-cv-01670 3-18-cv-01672, 3-18-cv-01673, 3-18-cv-01682, 3-18-cv-01684, 3-18-cv-01689, 3-18-cv-01699, 3-18-cv-01701, 3-18-cv-01709, 3-18-c-01721, 3-18-cv-01743, 3-18-cv-01754, 3-18-cv-01756, 3-18-cv-01774, 3-18-cv-01778, 3-18-cv-01801, 3-18-cv-01806, 3-18-cv-01845, 3-18-cv-01851, 3-18-cv-01855, 3-18-cv-01859, 3-18-cv-01863, 3-18-cv-01869, 3-18-cv-01874, 3-18-cv-01896, 3-18-cv-01905, 3-18-cv-01938, 3-18-cv-01942, 3-18-cv-01973, 3-18-cv-01974, 3-18-cv-01976, 3-18-cv-01990, 3-18-cv-01995, 3-18-cv-02001, 3-18-cv-02003 and 3-18-cv-02014). District Judge: Hon. Brian R. Martinotti.

PennEast Pipeline Co., LLC, 162 F.E.R.C. P61053, 2018 FERC LEXIS 90 (F.E.R.C., Jan. 19, 2018)

CORE TERMS

delegation, sovereign immunity, condemn, suits, exemption, immunity, federal government, pipeline, private party, abrogate, federal court, sovereign, eminent domain power, district court, qui tam, properties, tribes, condemnation action, eminent domain, Certificate, interstate, property interest, gas company, injunction, powers, injunctive relief, property owner, state property, unmistakably, orders

Business & Corporate Compliance, Energy & Utilities Law, Natural Gas Industry, Natural Gas Act, Energy & Utilities Law, Pipelines & Transportation, Eminent Domain Proceedings, Natural Gas Act, Certificates of Need, Civil Procedure, Appeals, Appellate Jurisdiction, Collateral Order Doctrine, Constitutional Law, State Sovereign Immunity, Standards of Review, De Novo Review, Abuse of Discretion, Remedies, Injunctions, Preliminary & Temporary Injunctions, Governments, State & Territorial Governments, Claims By & Against, Relations With Governments, Special Proceedings, Real Property Law, Eminent Domain Proceedings, Constitutional Limits & Rights, State Sovereign Immunity, Abrogation of Immunity, Congressional Duties & Powers, Commerce Clause, Limitations, Parties, Federal Government, Legislation, Statutory Remedies & Rights, Jurisdiction, In Rem & Personal Jurisdiction, In Rem Actions, Courts, Authority to Adjudicate, Common Law, Federal Government, Case or Controversy, Constitutional Questions, Necessity of Determination, Interpretation