The Wall Street Journal on a surprising Supreme Court:

When is a case about a pipeline about more than the pipeline? When it produces a 5-4 Supreme Court decision with a surprising mix of conservative and liberal Justices on both sides. Their opinions reflect disagreements from the founding era over the role and power of the federal government.

Pipeline developer PennEast has been seeking to build a 116-mile pipeline between Pennsylvania and New Jersey since 2014. The Natural Gas Act of 1938 delegates the federal government’s eminent domain power to private parties once the Federal Energy Regulatory Commission (FERC) certifies a pipeline.

PennEast had negotiated the route with New Jersey politicians, but Gov. Phil Murphy pulled a switcheroo and invoked state sovereign immunity under the Eleventh Amendment to block the company from building on state-owned land. The Eleventh Amendment bars states from being sued in federal court by private citizens of other states. New Jersey argued that FERC’s eminent domain delegation doesn’t apply to state land. Chief Justice John Roberts along with Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor and Brett Kavanaugh disagreed.

The Chief explains for the majority that “for as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties.” The Court has long also held that the feds can use eminent domain to condemn state property, which it can then transfer to a private company.

Congress in the Natural Gas Act, the Chief points out, specifically delegated its eminent domain power because states were “impeding interstate pipeline development by withholding access to their own eminent domain procedures.” New Jersey’s gambit would “violate the basic principle that a State may not diminish the eminent domain authority of the federal sovereign.”

The minority argues that “Congress cannot authorize private suits against a nonconsenting State pursuant” to its Article I powers including to regulate interstate commerce, as the Court held in Seminole Tribe of Florida v. Florida (1996). But this isn’t a hard-and-fast rule.

The Court has granted some exceptions such as under the Bankruptcy Clause and when the States agreed “in the plan of the Convention” not to assert any sovereign immunity defense. Here is the crux of legal disagreement. The majority says states consented to such suits when they ratified the Constitution while the minority differs.

Both sides make compelling cases based on the Constitution’s structure. Justice Amy Coney Barrett writes in a dissent joined by Justices Clarence Thomas, Elena Kagan and Neil Gorsuch that the “Constitution limits the means by which the Federal Government can impose its will on the States” and sovereign immunity was a “deliberately chosen feature of the constitutional design.”

True, but as the Chief rejoins, the Framers “sought to create a cohesive national sovereign in response to the failings of the Articles of Confederation” and eminent domain delegations have given “effect to that vision, connecting our country through turnpikes, bridges, and railroads—and more recently pipelines, telecommunications infrastructure, and electric transmission facilities.”

The 5-4 ruling is good for U.S. energy development, but it also shows that the Court with its two new Justices is far from a lockstep ideological battering ram. The Justices are seriously grappling with serious constitutional issues, with often surprising majority coalitions.


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