The Supreme Court, unready to decide whether it will review the legal fight between PennEast Pipeline Co. LLC and New Jersey, on June 29 asked US Solicitor General Noel Francisco to file a brief offering the Justice Department’s views on the pipeline right-of-way case.
PennEast has received approval from the Federal Energy Regulatory Commission to build a natural gas pipeline from Pennsylvania into New Jersey, and it has tried to use eminent domain authority under the Natural Gas Act to obtain rights-of-way over private and state-controlled land.
New Jersey balked at conceding eminent domain over two state-owned properties and 40 parcels of land where the state has obtained easements for conservation, recreation, or agricultural purposes. PennEast sued. The state argued the Eleventh Amendment to the Constitution gives states sovereign immunity from lawsuits by private parties, and in a September ruling the US Court of Appeals for the Third Circuit agreed.
PennEast in February asked the Supreme Court to review the case. Trade associations filed briefs at the court in support of PennEast. Among their fears is the possibility that state governments opposed to pipeline projects could acquire an effective veto power over the projects. A state might block new pipelines by obtaining environmental easements from private property owners along the proposed routes.
The Supreme Court is in the last days of its current term as far as rulings. A brief from the solicitor general could be used to help the court decide whether to accept or reject the case for its next term, starting in October.