New Jersey Pipeline Veto


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The Biden administration is not a fan of fossil fuels. But even he disagrees with New Jersey’s shrewd argument in a Supreme Court case to hear on Wednesday that the Constitution grants states a veto over interstate gas pipelines that trumps federal regulatory and judicial control.

Involved in PennEast Pipeline Co. v. New Jersey is a 116 mile pipeline between Pennsylvania and New Jersey. The Federal Energy Regulatory Commission (FERC) approved the pipeline after a two-year review that involved more than 200 meetings with officials. Some 70 variations were made to the route during the review.

New Jersey sought to block the pipeline by invoking its sovereign immunity under the Eleventh Amendment to block the conviction of 42 parcels of state land needed to build the pipeline.

Once the FERC certifies a pipeline, the Natural Gas Act delegates eminent domain power from the federal government to the pipeline company. Other federal laws delegate prominent federal domain power to private parties to build railways and transmission lines, although many of them explicitly exclude state ownership. The law on natural gas does not provide for such an exception.

Yet New Jersey argues in the case currently before the High Court that the Eleventh Amendment prohibits states from being sued by private parties in federal court. Ergo, PennEast Pipeline cannot use FERC’s eminent domain delegation to condemn sovereign state ownership in federal court.

But as the Interim Solicitor General of the United States explains in a brief support for PennEast, New Jersey is leading a “collateral attack” on the authority of the FERC and the regulatory scheme designed by Congress in Natural Gas. Act. New Jersey claims only partial ownership and control of 40 of the 42 plots in issue.

It would be next to impossible to build a pipeline that does not cross a piece of land that New Jersey does not claim to control. The same is true in all states. According to New Jersey’s argument, any state could block a FERC-approved pipeline simply by denying a developer access to a property it claims to control.

This is what Congress sought to prevent when it amended the Natural Gas Act in 1947 by delegating eminent domain power from the federal government to pipeline companies. The prominent domain delegation from Congress was aimed at preventing states from interfering with interstate commerce.

But now New Jersey is looking to block the pipeline to hamper the development of fossil fuels in Pennsylvania. This is a direct attack on the supremacy and commerce clauses of the Constitution. The Constitution grants states certain sovereign powers, but New Jersey behaves as if it were a separate sovereign nation.

Journal editorial report: Paul Gigot interviews environmentalist Bjorn Lomborg. Image: Christopher Furlong / Getty Images

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