PENNEAST PIPELINE CO., LLC v. NEW JERSEY ET AL.
No. 19-1039
SUPREME COURT OF THE UNITED STATES
Argued April 28, 2021—Decided June 29, 2021
594 U. S. ____ (2021)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
Congress passed the
FERC granted petitioner PennEast Pipeline Co. a certificate of public convenience and necessity authorizing construction of a 116-mile pipeline from Pennsylvania to New Jersey. Several parties, including respondent New Jersey, petitioned for review of FERC‘s order in the D. C. Circuit. The D. C. Circuit has held those proceedings in abeyance pending resolution of this case. PennEast filed various complaints in Federal District Court in New Jersey seeking to exercise the federal eminent domain power under
Held: Section 717f(h) authorizes FERC certificate holders to condemn all necessary rights-of-way, whether owned by private parties or States. Pp. 6–23.
(a) The United States raises a threshold challenge to the Third Circuit‘s jurisdiction below on the grounds that
(b) The Federal Government has exercised its eminent domain authority since the founding, connecting our country through turnpikes, bridges, and railroads—and more recently through pipelines, telecommunications infrastructure, and electric transmission facilities. The Court has upheld these exercises of the federal eminent domain power—whether by the Government or a private corporation, whether through the upfront taking of property or a condemnation action, and whether against private property or state-owned land. Section 717f(h) falls within this established practice. Pp. 7–12.
(1) Governments have long taken property for public use without the owner‘s consent. The United States is no different. While the Constitution and Bill of Rights did not use the term “eminent domain,” the Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation“) presupposed the existence of such a power. Initially, the Federal Government exercised its eminent domain authority in areas subject to exclusive federal jurisdiction. The Court later confirmed that federal eminent domain extended to property within a State. Kohl v. United States, 91 U. S. 367. The Court‘s decision in Kohl—which upheld the power of the United States to condemn land in Ohio to construct a federal building—observed that eminent domain was a “means well known when the Constitution was adopted” and that “[t]he powers vested by the Constitution in the general government demand for their exercise the
(2) For as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties. The Colonies, the States, and the Federal Government have commonly authorized the private condemnation of land for public works. And in the years following Kohl, the Court confirmed that private delegatees, like the United States, can exercise the federal eminent domain power within the States. In Luxton v. North River Bridge Co., 153 U. S. 525, for example, the Court rejected a landowner‘s claim that Congress could not delegate its authority to condemn property necessary to construct a bridge between New York and New Jersey. Congress had the sovereign power to construct bridges for interstate commerce, and the Court confirmed Congress could choose to do so through a corporation. Id., at 530. These powers, the Court noted, could be exercised “with or without a concurrent act of the State in which the lands lie.” Ibid. Early cases also reflected the understanding that state property was not immune from the exercise of delegated federal eminent domain power. See Stockton v. Baltimore & N. Y. R. Co., 32 F. 9 (Bradley, Cir. J.). The contrary position—that a federal delegatee could not condemn a State‘s land without the State‘s consent—would give rise to the “dilemma of requiring the consent of the state” in virtually every infrastructure project authorized by the Federal Government. Id., at 17. The Court in Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, echoed Stockton‘s explanation of the superior eminent domain power of the Federal Government when it rejected a challenge to a private railroad company‘s exercise of the federal eminent domain power against land owned by the Cherokees. In reaching that result, the Court acknowledged that “the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several States,” and the Court labeled as “strange” the notion that the Federal Government “could not exercise the same power in a Territory occupied by an Indian nation or tribe.” 135 U. S., at 656–657. Pp. 9–11.
(3) Section 717f(h) delegates to certificate holders the power to condemn any necessary rights-of-way, including land in which a State holds an interest. This delegation of the federal eminent domain authority is consistent with the Nation‘s history and this Court‘s precedents. FERC‘s issuance to a company of a certificate of public convenience and necessity to build a pipeline carries with it the power—if the company cannot acquire the necessary rights-of-way by contract at an
(c) Respondents contend that sovereign immunity bars condemnation actions against a nonconsenting State. Alternatively, respondents contend that
(1) “States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution.” Alden v. Maine, 527 U. S. 706, 713. A State may be sued only in limited circumstances, including where the State expressly consents or where Congress clearly abrogates the State‘s immunity under the Fourteenth Amendment. A State may also be sued if it has implicitly agreed to suit in the “plan of the Convention,” which is shorthand for “the structure of the original Constitution itself.” Id., at 728. The Court has looked to the plan of the Convention to permit actions against nonconsenting States in the context of bankruptcy proceedings, suits by other States, and suits by the Federal Government. Pp. 13–14.
(2) Respondents do not dispute that the NGA empowers certificate holders to condemn private property, but they contend that the same certificate holders have no power to condemn state-owned property under
Respondents do not dispute that the Federal Government enjoys a power of eminent domain superior to that of the States, or that the Federal Government can delegate that power to private parties. Respondents instead point to the absence of founding-era evidence of private condemnation suits against nonconsenting States to maintain that States did not consent to such suits when they entered the federal system. Respondents would divorce the federal eminent domain power from the power to bring condemnation actions—and then argue that the latter cannot be delegated to private parties with respect to state-owned lands. But the eminent domain power is inextricably inter-
The Court held in United States v. Texas, 143 U. S. 621, that it “does no violence to the inherent nature of sovereignty” for a State to be sued by “the government established for the common and equal benefit of the people of all the States.” Id., at 646. In so holding, the Court did not insist upon examples from the founding era of federal suits against States. Similar structural considerations support the conclusion that States consented to the federal eminent domain power, whether that power is exercised by the Government or its delegatees. The absence of a perfect historical analogue to the proceedings PennEast initiated below does not suggest otherwise. Pp. 14–21.
(3) Finally, respondents argue that even if States agreed in the plan of the Convention to condemnation suits by Federal Government delegatees, the NGA does not authorize such suits with the clarity required by the Court‘s precedents. There is no requirement, however, that the Federal Government speak with “unmistakable clarity” when authorizing a private party to exercise its eminent domain power. Pp. 21–22.
938 F. 3d 96, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, ALITO, SOTOMAYOR, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, KAGAN, and GORSUCH, JJ., joined.
PENNEAST PIPELINE COMPANY, LLC, PETITIONER v. NEW JERSEY, ET AL.
No. 19–1039
SUPREME COURT OF THE UNITED STATES
June 29, 2021
594 U. S. ____ (2021)
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Eminent domain is the power of the government to take property for public use without the consent of the owner. It can be exercised either by public officials or by private parties to whom the power has been delegated. And it can be exercised either through the initiation of legal proceedings or simply by taking possession up front, with compensation to follow. Since the founding, the United States has used its eminent domain authority to build a variety of infrastructure projects. It has done so on its own and through private delegatees, and it has relied on legal proceedings and upfront takings. It has also used its power against both private property and property owned by the States.
This case involves one of the ways the federal eminent domain power can be exercised: through legal proceedings initiated by private delegatees against state-owned property. Specifically, we are asked to decide whether the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. We hold that it can.
I
A
Natural gas has been a part of the Nation‘s energy supply since at least the 1820s, when an “enterprising gunsmith” named William Aaron Hart developed a natural gas well near Fredonia, New York. D. Waples, The Natural Gas Industry in Appalachia 12 (2d ed. 2012). Initially, difficulties in transporting natural gas limited its distribution, as the available pipeline technology did not allow producers to reach the sprawling American markets. See Tarr, Transforming an Energy System, in The Governance of Large Technical Systems 26 (O. Coutard ed. 1999). Over the following century, however, that technology slowly improved. In 1891, one of the first interstate pipelines—albeit a rudimentary and inefficient one—was built to carry natural gas from central Indiana to Chicago. And in the 1920s, development began in earnest on the country‘s pipeline infrastructure. See id., at 27–28; J. Speight, Natural Gas 20–21, 26 (2007).
In 1938 Congress passed the
As originally enacted, the NGA did not identify a mechanism for certificate holders to secure property rights necessary to build pipelines. Natural gas companies were instead left to rely on state eminent domain procedures, which were frequently made unavailable to them. In some States, the eminent domain power could be exercised only if the operation of a pipeline would benefit residents. See S. Rep. No. 429, 80th Cong., 1st Sess., 2 (1947) (collecting cases). In others, statutory and constitutional provisions denied state eminent domain power to corporations from other States. See id., at 2–3. The result was that certificate holders often had only an illusory right to build.
Congress acted to remedy this defect. In 1947, it amended the NGA to authorize certificate holders to exercise the federal eminent domain power. See ch. 333, 61 Stat. 459. Under
“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 to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas . . . , it may acquire the same 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.”
By enabling FERC to vest natural gas companies with the
B
Petitioner PennEast Pipeline Co. is a joint venture owned by several energy companies. In 2015, PennEast applied to FERC for a certificate of public convenience and necessity authorizing the construction of a 116-mile pipeline from Luzerne County, Pennsylvania, to Mercer County, New Jersey. FERC published notice of PennEast‘s application in the Federal Register, and subsequently received thousands of comments in writing and at public hearings. FERC then issued a draft environmental impact statement for the project, which yielded thousands of additional comments. PennEast made a number of route modifications in response to the concerns commenters had raised.
In January 2018, FERC granted PennEast a certificate of public convenience and necessity. FERC later denied rehearing of this decision, and several parties, including respondent New Jersey, petitioned for review in the D. C. Circuit. The D. C. Circuit has held those proceedings in abeyance pending resolution of this case.
Weeks after FERC granted its application, PennEast filed various complaints in Federal District Court in New Jersey. PennEast sought to exercise the federal eminent domain power under
New Jersey moved to dismiss PennEast‘s complaints on sovereign immunity grounds. The District Court denied the motion, holding that New Jersey was not immune from PennEast‘s exercise of the Federal Government‘s eminent domain power. In re PennEast Pipeline Co., 2018 WL 6584893, *12 (D NJ, Dec. 14, 2018). Having denied New Jersey‘s motion to dismiss on immunity grounds, the District Court granted PennEast‘s requests for a condemnation order and preliminary injunctive relief. Id., at *21, *26.
The Third Circuit vacated the District Court‘s order insofar as it awarded PennEast relief with respect to New Jersey‘s property interests, and it remanded for dismissal of any claims against the State. In re PennEast Pipeline Co., 938 F. 3d 96, 113 (2019). Although the court acknowledged that the Federal Government can condemn state-owned property, it reasoned that this power is in fact the product of two separate powers: the Federal Government‘s eminent domain power, on the one hand, and its ability to sue nonconsenting States, on the other. Id., at 104. While the Federal Government can delegate its eminent domain power to private parties, the court found “reason to doubt” that it can do the same with respect to its exemption from state sovereign immunity. Id., at 100. After expressing skepticism as to whether the Federal Government could ever delegate this exemption, see id., at 105–111, the court determined that it did not need to “definitively resolve that question,” because “nothing in the NGA indicates that Congress intended to do so,” id., at 111. In reaching this determination, the Third Circuit relied on this Court‘s precedents holding that Congress cannot abrogate state sovereign immunity in the absence of an “‘unmistakably clear‘” statement. Ibid. (quoting Blatchford v. Native Village of Noatak, 501 U. S. 775, 786 (1991)). Concluding that
We granted certiorari to determine whether the NGA authorizes certificate holders to condemn land in which a State claims an interest. 592 U. S. ___ (2021).
II
We begin by addressing a jurisdictional issue raised by the United States. As just noted, the Third Circuit ruled in New Jersey‘s favor based on the State‘s statutory argument that the NGA did not delegate to certificate holders the right to file condemnation actions against nonconsenting States. The United States now argues that the Third Circuit lacked jurisdiction to decide that question under
PennEast and the respondents both argue that the United States is wrong. We agree. New Jersey does not seek to modify FERC‘s order; it asserts a defense against the condemnation proceedings initiated by PennEast. To determine whether the District Court correctly rejected New Jersey‘s defense, the Third Circuit needed to decide whether
III
Turning to New Jersey‘s sovereign immunity defense, we begin by discussing the federal eminent domain power. Since the founding, the Federal Government has exercised its eminent domain authority through both its own officers and private delegatees. And it has used that power to take property interests held by both individuals and States. Section 717f(h) is an unexceptional instance of this established practice.
A
Governments have long taken property for public use without the owner‘s consent. Although the term “eminent domain” appears to have been coined by Grotius, see 2 De Jure Belli ac Pacis 807 (1646 ed., F. Kelsey transl. 1925), the history of the power may stretch back to biblical times, see Bell, Private Takings, 76 U. Chi. L. Rev. 517, 524–525 (2009). In England and the early Colonies, a host of statutes authorized the use of eminent domain for the construction of roads, bridges, and river improvements, among other projects. See Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 561–562 (1972). Those vested with the power could either initiate legal proceedings to secure the right to build, or they could take property up front and force the owner to seek recovery for any loss of value. See 1 Nichols on Eminent Domain §1.22[11–12] (3d ed. 2021); see also Knick v. Township of Scott, 588 U. S. ___, (2019) (slip op., at 3) (contrasting “direct condemnation” with “inverse condemnation“).
When the Constitution and Bill of Rights were ratified, they did not include the words “eminent domain.” The Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation“) nevertheless recognized the existence of such a power. Shortly after the founding, the Federal Government began exercising its eminent domain authority in areas subject to exclusive federal jurisdiction. See, e.g., Act of Mar. 3, 1809, 2 Stat. 539 (authorizing construction of turnpike road in the District of Columbia); see also Custiss v. Georgetown & Alexandria Turnpike Co., 6 Cranch 233 (1810) (suit by one of Martha Washington‘s grandsons to quash inquisition into value of land pursuant to Act).
By the second half of the 19th century, however, this Court confirmed that federal eminent domain extended to property within state boundaries as well. In Kohl v. United States, 91 U. S. 367 (1876), we held that the United States could condemn land in Ohio to construct a federal building. We reasoned that “[t]he powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States.” Id., at 371. And we noted that “[t]he right of eminent domain was one of those means well known when the Constitution was adopted, and employed to obtain lands for public uses.” Id., at 372. The federal eminent domain power, we said, “can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised.” Id., at 374. And to avoid any doubt, we added that “[t]he consent of a State can never be a condition precedent to [the] enjoyment” of federal eminent domain. Ibid.
While Kohl involved the condemnation of private land, we have since explained that federal eminent domain applies to state property interests as well. In Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508 (1941), we
B
For as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties. It was commonplace before and after the founding for the Colonies and then the States to authorize the private condemnation of land for a variety of public works. See Bell, 76 U. Chi. L. Rev., at 545; see generally, e.g., Hart, The Maryland Mill Act, 1669–1766, 39 Am. J. Legal Hist. 1 (1995). The Federal Government was no different. As early as 1809, Congress authorized private parties to exercise the eminent domain power—including through the initiation of direct condemnation proceedings—within areas subject to federal jurisdiction. See supra, at 8; see also Act of Mar. 2, 1831, 4 Stat. 477.
In the years following Kohl, the Court confirmed that private delegatees can exercise the federal eminent domain power within the States as well. Our decision in Luxton v. North River Bridge Co., 153 U. S. 525 (1894), is clear on this point. Congress authorized a corporation to build a bridge between New York and New Jersey, and to condemn property as necessary along the way. Id., at 525–528 (statement of the case); see Act of July 11, 1890, ch. 669, 26 Stat. 268. Luxton—who owned land in Hoboken against which the corporation had brought condemnation proceedings—objected on the ground that Congress had unconstitutionally delegated its eminent domain power to the corporation. 153 U. S., at 527–528 (statement of the case). We rejected Luxton‘s challenge, explaining that Congress “may, at its dis-
State property was not immune from the exercise of delegated eminent domain power. In fact, this is not the first time New Jersey has tried to thwart such a delegation. In Stockton v. Baltimore & N. Y. R. Co., 32 F. 9 (CC NJ 1887), Justice Bradley, riding circuit, considered a challenge by New Jersey to an Act of Congress authorizing a New York corporation to build a bridge on state-owned land. Id., at 9–11; see Act of June 16, 1886, ch. 417, 24 Stat. 78. The Secretary of War had approved the plans for the bridge, as required by the Act, and the corporation had begun preparing for construction. 32 F., at 11. New Jersey sought an injunction, arguing among other things that an out-of-state corporation could not operate within its borders, and that the corporation could not take its land without its consent. Id., at 13, 17. Justice Bradley dismissed these arguments, reasoning that “if congress, in the execution of its powers, chooses to employ the intervention of a proper corporation, whether of the state, or out of the state, we see no reason why it should not do so.” Id., at 14. Justice Bradley also presciently noted that New Jersey‘s position, if accepted, would give rise to the “dilemma of requiring the consent of the state in almost every case of an interstate line of communication by railroad, for hardly a case can arise in which some property belonging to a state will not be crossed.” Id., at 17.
Just a few years after Stockton, Justice Bradley‘s views were adopted by the full Court. In Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641 (1890), the Cherokees argued that a private railroad company could not exercise the federal eminent domain power pursuant to an Act
C
The cases above paint a clear picture: Since its inception, the Federal Government has wielded the power of eminent domain, and it has delegated that power to private parties. We have observed and approved of that practice. The eminent domain power may be exercised—whether by the Government or its delegatees—within state boundaries, including against state property. We have also stated, as a general matter, that “the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings.” United States v. Dow, 357 U. S. 17, 21 (1958).
Section 717f(h) follows this path. As described above, a natural gas company must obtain a certificate of public convenience and necessity from FERC in order to build a pipeline. Once the certificate is obtained, if the company “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” to build the pipeline, then the company “may acquire the same by the exercise of the right of eminent domain.”
The respondents and the principal dissent do not dispute that the NGA empowers certificate holders to condemn private property. They argue instead that sovereign immunity bars condemnation actions against nonconsenting States. And even if such actions are constitutionally permissible, the respondents (but not the dissent) contend that
A
“States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution.” Alden v. Maine, 527 U. S. 706, 713 (1999). When “the States entered the federal system,” they did so “with their sovereignty intact.” Blatchford, 501 U. S., at 779. Although the Court initially held that States could be subject to suit by citizens of other States, see Chisholm v. Georgia, 2 Dall. 419 (1793), the ratification of the Eleventh Amendment soon corrected this error. That Amendment provides that “[t]he 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.” Our decision in Hans v. Louisiana, 134 U. S. 1 (1890), clarified that States retain their immunity from suit regardless of the citizenship of the plaintiff. Since Hans, “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” Blatchford, 501 U. S., at 779.
Under our precedents, a State may be subject to suit only in limited circumstances. A State may of course consent to suit, although such consent must be “unequivocally expressed.” Sossamon v. Texas, 563 U. S. 277, 284 (2011) (in-
B
The respondents and the dissent argue that private parties cannot condemn state-owned property under
Beginning with the argument that Congress cannot sub-
But congressional abrogation is not the only means of subjecting States to suit. As noted above, States can also be sued if they have consented to suit in the plan of the Convention. And where the States “agreed in the plan of the Convention not to assert any sovereign immunity defense,” “no congressional abrogation [is] needed.” Allen, 589 U. S., at ___ (slip op., at 8).
As the cases discussed in Part III show, the States consented in the plan of the Convention to the exercise of federal eminent domain power, including in condemnation proceedings brought by private delegatees. The plan of the Convention reflects the “fundamental postulates implicit in the constitutional design.” Alden, 527 U. S., at 729. And we have said regarding the exercise of federal eminent domain within the States that one “postulate of the Constitution [is] that the government of the United States is invested with full and complete power to execute and carry out its purposes.” Cherokee Nation, 135 U. S., at 656 (quoting Stockton, 32 F., at 19).
Put another way, when the States entered the federal system, they renounced their right to the “highest dominion in the lands comprised within their limits.” 135 U. S., at
The respondents and the dissent do not dispute that the Federal Government enjoys a power of eminent domain superior to that of the States. Nor do they dispute that the Federal Government can delegate that power to private parties. They instead assert that the only “question is whether Congress can authorize a private party to bring a condemnation suit against a State.” Post, at 5; see Brief for Respondent NCJF 40; Brief for Respondent New Jersey et al. 15. And they argue that because there is no founding-era evidence of such suits, States did not consent to them when they entered the federal system. See post, at 5–7; Brief for Respondent NCJF 39–42; Brief for Respondent New Jersey et al. 13–16.
The flaw in this reasoning is that it attempts to divorce
If private parties authorized by the Federal Government were unable to condemn States’ property interests, then that would leave delegatees with only one constitutionally permissible way of exercising the federal eminent domain power: Take property now and require States to sue for compensation later.* It is difficult to see how such an arrangement would vindicate the principles underlying state sovereign immunity. Whether the purpose of that doctrine is to “shield[] state treasuries” or “accord the States the respect owed them as joint sovereigns,” Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 765 (2002)*
Perhaps sensing the incongruity of such a result, New Jersey has taken the extreme stance that there is no constitutional mechanism for Federal Government delegatees to exercise the eminent domain power against the States. See Tr. of Oral Arg. 86. This position is untenable. “[J]ust as permission to harvest the wheat on one’s land implies permission to enter on the land for that purpose,” A. Scalia & B. Garner, Reading Law 192 (2012), so too does authorization to take property interests imply a means through which those interests can be peaceably transferred. An eminent domain power that is incapable of being exercised amounts to no eminent domain power at all. And that is contrary to the plan of the Convention for the reasons discussed in Kohl, Stockton, Cherokee Nation, and Luxton.
The dissent, for its part, declines to say whether Congress could authorize a certificate holder to take possession of state property through upfront entry. See post, at 7–8, and n. 3. The dissent gestures at other judicial and administrative procedures that delegatees might be able to use to take state property. See post, at 8, n. 3. But such procedures would almost certainly meet the same fate as traditional condemnation actions under the dissent’s analysis. See Federal Maritime Comm’n, 535 U. S., at 760–761.
Furthermore, the respondents and the dissent prove too much by emphasizing the historical absence of private condemnation suits against state-owned lands. As a preliminary matter, they appear to cast doubt on the provenance of the Federal Government’s ability to exercise its eminent domain power within the States. See post, at 6; Brief for Respondent NCJF 40–42; Brief for Respondent New Jersey et al. 16–18. But we resolved in Kohl and its progeny that
The respondents and the dissent recognize, moreover, that States consented in the plan of the Convention to suits by the Federal Government, even though that proposition was not established until 1892 in United States v. Texas, 143 U. S. 621. See post, at 6–7; Brief for Respondent NCJF 37; Brief for Respondent New Jersey et al. 20–21; see also Principality of Monaco v. Mississippi, 292 U. S. 313, 329 (1934); Blatchford v. Native Village of Noatak, 501 U. S. 775, 781–782 (1991). The Court in Texas—which was decided even more recently than Kohl, Stockton, and Cherokee Nation—did not insist upon examples from the founding era of federal suits against States. The Court instead reasoned as a structural matter that such suits were authorized because it “does no violence to the inherent nature of sovereignty” for a State to be sued by “the government established for the common and equal benefit of the people of all the States.” 143 U. S., at 646. The structural considerations discussed above likewise show that States consented to the federal eminent domain power, whether that power is exercised by the Government or its delegatees. And that is true even in the absence of a perfect historical analogue to the proceedings PennEast initiated below.
The dissent argues that the Court in Texas relied not only on “constitutional structure,” but also on “textual cues.” Post, at 6. But the only relevant constitutional text in Texas was a grant of federal jurisdiction, and that cannot explain States’ implicit consent in the plan of the Convention to
As a final point, the other dissent offers a different theory—that even if the States consented in the plan of the Convention to the proceedings below, the
We conclude by addressing the respondents’ argument (which the dissent does not join) that even if States agreed in the plan of the Convention to condemnation suits by Federal Government delegatees, the NGA does not authorize such suits with the requisite clarity. The Third Circuit adopted this position below, concluding that
The respondents are certainly correct that a clear statement is required to subject States to suit in the waiver and abrogation contexts. But they have again misconstrued the issue in this case as whether the United States can delegate its ability to sue States. The issue is instead whether the United States can delegate its eminent domain power to private parties. Regardless whether the Federal Government must speak with unmistakable clarity when delegating its freestanding exemption from state sovereign immunity (assuming such a delegation is even permissible, see Blatchford, 501 U. S., at 785), there is no similar re-
V
When the Framers met in Philadelphia in the summer of 1787, they sought to create a cohesive national sovereign in response to the failings of the
The NGA fits well within this tradition. From humble beginnings in central Indiana, the Nation’s interstate pipeline system has grown to span hundreds of thousands of miles. This development was made possible by the enactment of
It is so ordered.
PENNEAST PIPELINE COMPANY, LLC, PETITIONER v. NEW JERSEY, ET AL.
No. 19–1039
SUPREME COURT OF THE UNITED STATES
[June 29, 2021]
594 U.S. ___ (2021)
GORSUCH, J., dissenting
I join JUSTICE BARRETT’s dissenting opinion in full, which ably explains why this case implicates New Jersey’s structural immunity and how New Jersey never waived that immunity in the summer months of 1787. I write only to address one recurring source of confusion in this area and which the Court does not address. In the same breath, the district court said an
The second—what is properly termed “Eleventh Amendment immunity”—derives from the text of the
“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., Amdt. 11 .
This text “means what it says. It eliminates federal judicial power over one set of cases: suits filed against states, in law or equity, by diverse plaintiffs.” Baude & Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609, 612 (2021).
The
This case appears to present “the rare scenario” that comes within the
If that’s all true, then a federal court “shall not” entertain this suit. The
PENNEAST PIPELINE COMPANY, LLC, PETITIONER v. NEW JERSEY, ET AL.
No. 19–1039
SUPREME COURT OF THE UNITED STATES
[June 29, 2021]
594 U.S. ___ (2021)
BARRETT, J., dissenting
A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and we have repeatedly held that the
I
As a “general rule,” Congress cannot circumvent state sovereign immunity’s limitations on the judicial power through its
We have recognized but one exception to this general limit on Congress’
State surrender of immunity to private suits is therefore rare in our constitutional system. Nonetheless, the Court insists that private condemnation suits are one of the rare exceptions.
II
A
According to the Court, the States surrendered their immunity to private condemnation suits in the “plan of the Convention.” Ante, at 15. Making this showing is no easy task. We will not conclude that States relinquished their sovereign immunity absent “compelling evidence that the
The Court accepts PennEast’s argument that there is such compelling evidence here. The reasoning goes like this: States “surrendered any immunity from the federal government’s eminent-domain power in the plan of the convention”; when they did so, “they were consenting to that power as it was then ‘known’”; and “[a]t the Founding, eminent domain was universally known as a power that could be delegated to private parties.” Brief for Petitioner 23, 33. So, the argument concludes, the States “were consenting to a power that the federal government could exercise either itself or through delegations to private parties.” Id., at 34. The States “simply do not have any immunity to invoke in this context.” Id., at 23.
These premises warrant clarification. First, the Constitution enumerates no stand-alone “eminent-domain power.”2 The Court recognizes—as does our precedent—that the Federal Government may exercise the right of eminent domain only “so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.” Kohl v. United States, 91 U. S. 367, 372 (1876); see McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). Any taking of property provided for by Congress is thus an exercise of another constitutional power—in the case of the Natural Gas Act, the
Second, the assertion that the States “surrendered any
So while the Court casts the inquiry as one about the scope of the States’ consent to the Federal Government’s “eminent-domain power,” that is the wrong way to think about the problem. Here is the right way:
B
The Court’s proposed escape route from this analysis—that the States relinquished their immunity from private condemnation suits in the plan of the Convention—is a dead end. There is no “Eminent Domain Clause” on which
The Court relies exclusively on the fact that Congress and the States, like the Colonies before them, have consistently authorized private parties to exercise the right of eminent domain to obtain property for mills, roads, and other public improvements. See ante, at 9–11. As the Court notes, Congress did so in the early days of the Republic only within “areas subject to exclusive federal jurisdiction,” though we later held that Congress could take property within state boundaries as well. Ante, at 8–9. This history is long and undisputed, and the Court presents it as conclusive evidence on PennEast’s side of the ledger.
But the question before us is not whether Congress can authorize a private party to exercise the right of eminent domain against another private party, which is the proposition this history supports. Nor is it whether Congress can authorize a private entity to take state property through means other than a condemnation suit. The question is whether Congress can authorize a private party to bring a condemnation suit against a State. And on that score, the Court comes up dry.
Moreover, no one disputes that for 75 years after the founding, it was unsettled whether the Federal Government could even exercise eminent domain over private land within a State. See Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L. J. 1738, 1741, 1761–1777 (2013). It was then 77 years more before we held that “[t]he fact that land is owned by a state is no barrier to its condemnation by the United States.” Guy F. Atkinson Co., 313 U. S., at 534. Given the length of time that these questions lingered, it strains credulity to say that history unequivocally establishes that States surrendered their immunity to private condemnation suits in the plan of the Convention.
The Court downplays “the historical absence of private condemnation suits against state-owned lands,” noting that we did not rely on historical examples when we held that States consented in the plan of the Convention to suits by the Federal Government. Ante, at 18–19 (citing Texas, 143 U. S. 621). But in that decision, the supremacy of the Federal Government in our constitutional structure, along with textual cues, were sufficient to resolve the question. Id., at 644–646. Here, there is no basis for drawing an analogous
C
The Court rejects this conclusion on the ground that state immunity from private condemnation suits would render the federal eminent domain power incomplete. Ante, at 16–18 (stating that the power must be “‘complete in itself ’”). The Court is wrong.
To begin with, sovereign immunity would not permit States to obstruct construction of a federally approved pipeline. No one disputes that in our constitutional structure, the Federal Government is supreme within its realm.
A direct taking, however, is not enough for the Court, which—continuing to cast eminent domain as a stand-alone power—claims that allowing a State to assert an immunity defense in a private condemnation suit would “diminish the eminent domain authority of the federal sovereign.” Ante,
State sovereign immunity indisputably makes it harder for Congress to accomplish its goals, as we have recognized many times before. For example, Congress cannot abrogate state sovereign immunity to pursue the “proper
III
While the Court cloaks its analysis in the “plan of the Convention,” it seems to be animated by pragmatic concerns. Congress judged private condemnation suits to be the most efficient way to construct natural gas pipelines, and to this point, States have cooperated. Ante, at 3–4. But now that New Jersey has chosen to object, it threatens to “thwart” federal policy. Ante, at 10. If the Court sided with New Jersey and Congress did not amend
Our precedents provide a ready response: The defense of sovereign immunity always has the potential of making it easier for States to get away with bad behavior—like copyright infringement, Allen, 589 U. S., at ___–___ (slip op., at 2–4), patent infringement, Florida Prepaid, 527 U. S., at 630–634, and even reneging on debts, Chisholm v. Georgia, 2 Dall. 419, 430 (1793). Indeed, concern about States using sovereign immunity to thwart federal policy is precisely why many Justices of this Court have dissented from our sovereign immunity jurisprudence. See, e.g., Seminole Tribe, 517 U. S., at 77 (Stevens, J., dissenting) (objecting that the majority’s holding “prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy”). The availability of the defense does not depend on whether a court approves
The Court also brushes past New Jersey’s interests by failing to acknowledge that
Moreover, obtaining title is not necessarily a cut-and-dry matter. New Jersey points out that there is sometimes litigation—as there was here—about whether the property sought falls within the FERC certificate. Brief for State Respondents 24–25. Compensation, too, can be a matter of dispute. The State and the plaintiff are unlikely to see eye to eye on what the property is worth, and there is often a battle of the experts about the property’s value. See 4 Sackman, Nichols on Eminent Domain §13.01[1][b][i] (“Establishing the value of real estate requires a valuation expert”); ibid. (“‘Valuation of property is not an exact process and courts are often greeted with conflicting appraisal testimony’”). If PennEast gets title at a bargain, New Jersey will suffer a loss even if no money leaves its treasury.
IV
It would be very odd for the government’s right to take property for public use to exist only if private parties can exercise it. That, however, is the Court’s position. And by