By Kevin Sunday
On June 29, in one of its final decisions handed down for the term, the U.S. Supreme Court issued its decision in the case of PennEast Pipeline v. New Jersey, a case involving whether New Jersey could deny a right-of-way to a federally permitted pipeline needing access to publicly owned lands for construction of the project. In a win for the project, and more broadly for permitting certainty and infrastructure, the Court ruled 5-4 that the Natural Gas Act authorizes such projects to condemn all necessary rights-of-way.
The PA Chamber joined the U.S. Chamber in filing an amicus brief to the Supreme Court in support of the project, which represents a $1 billion investment in delivering gas from northeast Pennsylvania to southeast Pennsylvania and New Jersey. In a statement, PA Chamber President and CEO Gene Barr noted that “as part of our member-driven, ‘Bringing PA Back’ recovery initiative, infrastructure build-out, including energy transmission projects like PennEast, is paramount to Pennsylvania’s sustained vitality and the economic opportunity available to its citizens.” Daryl Joseffer, the U.S. Chamber’s senior vice president for its litigation center, added, “the Court confirmed that once projects have been carefully approved by FERC, the private sector may follow through with them. Yesterday’s decision is an important step to solving America’s infrastructure challenges.”
The majority included a mix of Democratic and Republican appointees, with Chief Justice Roberts writing the opinion, joined by Justices Breyer, Alito, Sotomayor and Kavanaugh. New Jersey had attempted to argue the 11th Amendment provided sovereign immunity from the project suing for access to the state-owned lands located along the route. Roberts and the majority rejected that argument, noting that without Congress delegating to permitted projects an effective mechanism to obtain access to properties for construction (whether publicly or privately held), the federal permitting paradigm would be illusory. The decision allows the project, which the PA Chamber has supported throughout its planning and application process, to move forward.
More broadly, the decision provides greater certainty to any interstate infrastructure project permitted by federal agencies, be it electric transmission, oil and gas pipelines, or roads and bridges. Such certainty is necessary if the state and local governments and their partners in the private sector are going to be successful in building out the infrastructure necessary to support a 21st century economy. It is for this reason that infrastructure is a core pillar of the PA Chamber’s “Bringing PA Back” economic recovery initiative. As our organization has noted in various letters and advocacy pieces throughout this legislative session, an effective and efficient regulatory and permitting regime is going to be necessary to support economic recovery. Without timely permit approvals, construction schedules on any manner of projects will languish.
While the Court’s decision is a win, there are additional reforms needed at the state and local level, including providing additional resources to the state Department of Environmental Protection to expedite permitting reviews and provide greater certainty to project developers whose permits are approved. To return to the PennEast case, such certainty was central to the writing of the Natural Gas Act many decades ago, including the granted power of eminent domain (as Justice Breyer noted during oral argument.) In remarking that state opposition to vital energy projects is nothing new, Breyer said Congress was in its rights to ensure these projects get built.
Supports of infrastructure, energy development and a 21st century economy might also take heart in the composition of the justices in the majority opinion. Each justice is appointed by a Republican or Democratic President and confirmed by the Senate, and each have their own judicial philosophy and approach to the position. Nonetheless, casual court observers often attempt to plot the justices on a conservative-liberal spectrum, with Justices Thomas and Alito on the far right and Sotomayor on the far left. In practice, this approach is lacking, as justices are not often entirely predictable in how they may rule: in this case, Chief Justice Roberts (generally considered to be conservative but with a moderate approach in keeping with his views of the need to preserve institutional legitimacy of the Court) wrote the opinion, with Breyer (considered to be moderately liberal), Sotomayor (very liberal), Kavanaugh (moderately conservative) and Alito (very conservative) joining him. In other words, a very bipartisan (in the sense of judicial philosophy not partisan affiliation) mix of justices, in keeping with the PA Chamber’s arguments that regulatory reform, permitting certainty and adherence to the statutes as enacted should not be a one-sided affair.
After all, even the Biden administration, which has revoked permits for several major pipelines or ordered granted permits be again reviewed by agencies, agreed with the pipeline’s developers in this case. While a cynical interpreter may believe this was done out of a general desire to preserve greater federal power in any decision — particularly with respect to the construction of renewable energy and associated transmission projects — in practice, the White House’s position in this matter demonstrates a bipartisan recognition that once a federal agency greenlights an interstate infrastructure project, there needs to actually be a path to get it built. The PA Chamber wholeheartedly agrees.
Kevin Sunday is director of government affairs for the PA Chamber.