Jackson Kelly PLLC

Energy and Environment Monitor

Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines

November 11, 2019

By: Robert G. McLusky

We have written about this before. Both the Third Circuit Court of Appeals and the District Court of Maryland (in the Fourth Circuit) have ruled that Congress can convey to FERC-approved energy projects the right to condemn property, but have also held that the right does not extend to state-owned property. See Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal Courts. Both courts ruled that states enjoy sovereign immunity to suits in federal court from all parties except the federal government. They also ruled, though, that Congress may not by legislation (e.g., the Natural Gas Act) convey to private entities the right to abrogate states’ immunity. Thus, while Congress could authorize FERC to abrogate state sovereign immunity and condemn state-owned property, Congress cannot convey that authority to private entities. 


PennEast and a consortium of supporters asked the Third Circuit to reconsider its ruling, arguing that the result allows uncooperative states to block pipeline projects—precisely the problem that the Natural Gas Act was intended to prevent. The Third Circuit, however, has now declined to reconsider its ruling.  PennEast will almost certainly seek review now before the U.S. Supreme Court.


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