On June 29, in one of its final decisions handed down for the term, the U.S. Supreme Court issued its decision in PennEast Pipeline v. New Jersey, a case involving whether New Jersey could deny a right of way on state-owned lands to a federally-permitted pipeline needing construction access. In a win for the project and more broadly for infrastructure development and permitting certainty, the Court ruled 5-4 that the Natural Gas Act authorizes the use of eminent domain to acquire necessary rights-of-way for approved projects.
The PA Chamber joined the U.S. Chamber to file an amicus brief supporting PennEast and the project, which represents a $1 billion investment and will deliver gas from northeast Pennsylvania to southeast Pennsylvania and New Jersey. Both business groups hailed the decision in a statement, with PA Chamber President and CEO Gene Barr noting that “infrastructure build-out, including energy transmission projects like PennEast, is paramount to Pennsylvania’s sustained vitality and the economic opportunity available to its citizens.”
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. The majority rejected the argument made by the state of New Jersey that the Eleventh Amendment provides sovereign immunity, preventing the builder from suing for access to the state-owned lands along the route. The Court found that without Congress providing an effective mechanism for approved projects to proceed with construction (on public or private lands), the federal permitting process wouldn’t be valid. The decision allows the project, which the PA Chamber has supported throughout its planning and application process, to move forward.