938 F.3d 96
3rd Cir.2019Background
- PennEast sought and received a FERC Certificate to build an interstate natural gas pipeline from Pennsylvania to New Jersey and filed federal condemnation actions under the Natural Gas Act (NGA) to acquire ~131 parcels. 42 of those interests were owned (fee or easements) by New Jersey or state agencies.
- PennEast asked the District Court for immediate possession (condemnation orders) and preliminary injunctive relief to begin construction; the District Court granted both remedies and appointed commissioners to assess just compensation.
- New Jersey invoked Eleventh Amendment sovereign immunity and also argued PennEast failed to satisfy the NGA’s jurisdictional prerequisites (e.g., inability to acquire by contract as to all relevant interest-holders).
- On appeal, the Third Circuit held that private NGA condemnation suits against New Jersey are barred: the NGA does not abrogate state sovereign immunity, nor does its grant of eminent-domain authority delegate the federal government’s Eleventh Amendment exemption to private parties.
- The court emphasized the constitutional distinction between (1) the federal government’s power of eminent domain and (2) the federal government’s exemption from state sovereign immunity, and remanded with instructions to dismiss claims against New Jersey.
Issues
| Issue | Plaintiff's Argument (PennEast) | Defendant's Argument (New Jersey) | Held |
|---|---|---|---|
| Whether delegation of federal eminent-domain authority under the NGA permits a private certificate-holder to sue a State in federal court (i.e., delegation of the federal Eleventh Amendment exemption). | Delegation of eminent-domain power necessarily includes the ability to condemn State property and sue States so pipeline construction is not obstructed. | The federal government cannot delegate its Eleventh Amendment exemption to private parties; such delegation is unsupported and unconstitutional. | Held for New Jersey: delegation of eminent-domain power does not imply delegation of the federal immunity to sue States; deep doubt that such delegation is permissible. |
| Whether the NGA itself abrogates state sovereign immunity (i.e., Congress unmistakably intended to subject States to NGA suits). | The NGA’s plain text authorizes condemnation by certificate-holders over any necessary right-of-way; Congress intended interstate pipelines to proceed, implying subjecting all property (including State-owned) to NGA condemnation. | Abrogation requires unmistakably clear statutory language and a valid constitutional basis; NGA is enacted under the Commerce Clause and cannot validly abrogate immunity under Seminole Tribe. | Held for New Jersey: NGA does not unmistakably and validly abrogate state sovereign immunity. |
| Whether PennEast satisfied NGA §717f(h) prerequisites (Certificate, inability to acquire by contract from owners, >$3,000 value), particularly as to non-possessory easement holders. | PennEast had a valid Certificate, made offers exceeding $3,000, and need not negotiate with non-possessory easement holders—only possessory owners. | PennEast must attempt to acquire all relevant property interests (including easement holders) before condemnation. | District Court previously found PennEast met §717f(h); the Third Circuit did not resolve this fully because Eleventh Amendment bar disposed of claims against the State. |
| Whether preliminary injunctive relief to obtain immediate possession was appropriate. | Immediate possession is necessary to avoid irretrievable delay and economic loss; FERC’s public-necessity finding supports the public-interest factor. | Granting immediate possession against a nonconsenting State violates sovereign immunity; potential harms to state-preserved lands and policy objections weigh against immediate possession. | Preliminary injunction was vacated insofar as it affected New Jersey property because federal court lacked jurisdiction over those claims due to sovereign immunity. |
Key Cases Cited
- Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) (expresses doubt that the United States can delegate its Eleventh Amendment exemption to private parties).
- Alden v. Maine, 527 U.S. 706 (1999) (state sovereign immunity is a fundamental aspect of state sovereignty surviving the Constitution).
- Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (Congress may not abrogate state sovereign immunity pursuant to its Commerce Clause power).
- United States v. Carmack, 329 U.S. 230 (1946) (federal eminent-domain practice and the role of federal immunity in condemning state land).
- Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) (orders denying Eleventh Amendment immunity are immediately appealable).
- Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) (Congressional abrogation of state sovereign immunity must be unmistakably clear).
- Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Congress may abrogate state immunity under §5 of the Fourteenth Amendment).
- Coeur d’Alene Tribe of Idaho v. Idaho, 521 U.S. 261 (1997) (federal courts cannot entertain private suits that divest a State of its property interest absent consent).
- Kelo v. City of New London, 545 U.S. 469 (2005) (broad statement of public-purpose takings doctrine referenced for transfer/condemnation context).
- Kohl v. United States, 91 U.S. 367 (1875) (historical statement of the federal eminent-domain power).
- Sabine Pipe Line, LLC v. Orange Cty., Tex., 327 F.R.D. 131 (E.D. Tex. 2018) (district court holding that NGA condemnation by private party is barred by Eleventh Amendment).