On February 3, 2021, the U.S. Supreme Court agreed to review a 2019 ruling from the 3rd U.S. Circuit Court of Appeals that prevented PennEast Pipeline Co. LLC from suing New Jersey to seize 42 parcels of state-owned land to build a 116-mile natural gas pipeline between Pennsylvania and New Jersey.[1] Under a provision in the U.S. Natural Gas Act (NGA), pipeline companies can use the federal government’s eminent domain power. After gaining approval for the pipeline from the Federal Energy Regulatory Commission (FERC) in 2018, PennEast sued to gain access to land that is either owned or partially controlled by New Jersey. The 3rd Circuit, which is based in Philadelphia, found that while the AGA lets companies use eminent domain, it does not allow them to sue states to enforce that power. The panel cited the 11th Amendment of the Constitution, which limits the situations in which private entities can sue states without their consent. In recent friend of the court briefs, PennEast and other industry groups claim that the 3rd Circuit decision overturned precedent and would be disruptive to the energy industry.[2] The Supreme court will hear arguments in April 2021, with a ruling likely by late June 2021.
[1] https://www.bloomberg.com/news/articles/2021-02-03/supreme-court-agrees-to-hear-appeal-from-penneast-pipeline