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PennEast Pipeline Company, LLC v. New Jersey, et al.

Paid petition · United States Court of Appeals for the Third Circuit, No. 19-1191, 19-1232 · judgment September 10, 2019

Decided · June 29, 2021
Pre-decision estimate: 7% cert probability (95% interval 4%–11%)

Before the decision, about 1.7× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Third Circuit decision below, and a business petitioner.

Questions presented

  1. The Natural Gas Act authorizes a private gas company to exercise the federal government's power of eminent domain to secure necessary rights-of-way for the construction of an interstate pipeline if FERC grants the company a certificate of public convenience and necessity for the project. 15 U.S.C. §717f(h). This Court has long recognized that the federal eminent domain power may be exercised against stateowned property. See, e.g., Kohl v. United States, 91 U.S. 367 (1875). Consistent with that rule, for the better part of a century, certificate holders have invoked §717f(h) to secure rights-of-way across private- and state- owned property alike. Yet the decision below, issued without the benefit of the federal government's views, deemed this longsettled understanding mistaken and held that the federal eminent domain power in §717f(h) cannot be exercised by certificate holders as to property in which a state has an interest. In reaching that conclusion, the Third Circuit conceded that its decision "may disrupt how the natural gas industry, which has used the NGA to construct interstate pipelines over State-owned land for the past eighty years, operates:" App.30. FERC has since confirmed that the Third Circuit's interpretation of §717f(h) is mistaken, but that the court's prediction about the dire consequences is correct. The question presented is: Whether the NGA delegates to FERC certificate holders the authority to exercise the federal government's eminent domain power to condemn land in which a state claims an interest. ORDER OF FEBRUARY 3, 2021:

  2. Added by the Court: Did the Court of appeals properly exercise jurisdiction over this case? The case will be set for argument in the april 2021 argument Session.

Counsel of record

For petitioner
Paul D. Clement
Clement & Murphy, PLLC

For respondent
Jeremy Michael Feigenbaum
Office of the Attorney General of New Jersey

Case

Conference history
Distributed for 3 conferences

Amicus briefs
10 cert-stage · 11 merits
(8 supporting pet./neither, 3 respondent)

Argument & decision

Argued April 28, 2021 — Paul D. Clement · Jeremy M. Feigenbaum. Audio and transcript

Decided June 29, 2021. Opinion by Roberts, C.J..

Proceedings

  1. Aug 02 2021
    JUDGMENT ISSUED.
  2. Jun 29 2021
    Judgment REVERSED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Breyer, Alito, Sotomayor, and Kavanaugh, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas, J., joined. Barrett, J., filed a dissenting opinion, in which Thomas, Kagan, and Gorsuch, JJ., joined.
  3. Apr 28 2021
    Argued. For petitioner: Paul D. Clement, Washington, D. C.; and Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Jeremy M. Feigenbaum, Counsel to the Attorney General, Trenton, N. J.
  4. Apr 16 2021
    Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  5. Apr 16 2021
    Reply of petitioner PennEast Pipeline Company, LLC filed. (Distributed)
  6. Apr 07 2021
    Brief amici curiae of State of Oregon, et al. filed. (Distributed)
  7. Apr 07 2021
    Brief amicus curiae of Institute for Justice filed. (Distributed)
  8. Apr 07 2021
    Brief amici curiae of The Council of State Governments, et al. filed. (Distributed)
  9. Mar 31 2021
    Brief of respondent New Jersey Conservation Foundation filed. (Distributed)
  10. Mar 31 2021
    Brief of respondents New Jersey, et al. filed. (Distributed)
  11. Mar 31 2021
    Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  12. Mar 30 2021
    CIRCULATED
  13. Mar 15 2021
    Record requested.
  14. Mar 12 2021
    SET FOR ARGUMENT on Wednesday, April 28, 2021.
  15. Mar 08 2021
    Brief amici curiae of The Chamber of Commerce of the United States of America and the Pennsylvania Chamber of Business and Industry filed.
  16. Mar 08 2021
    Brief amicus curiae of Columbia Gas Transmission, LLC filed.
  17. Mar 08 2021
    Brief amici curiae of United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, et al. filed.
  18. Mar 08 2021
    Brief amicus curiae of Energy Equipment and Infrastructure Alliance filed.
  19. Mar 08 2021
    Brief amici curiae of Pennslvania Manufacturers' Association and the New Jersey Business & Industry Association filed.
  20. Mar 08 2021
    Brief amicus curiae of United States filed.
  21. Mar 08 2021
    Brief amici curiae of Interstate Natural Gas Association of America, American Gas Association, American Petroleum Institute filed.
  22. Mar 08 2021
    Brief amici curiae of Marcellus Shale Coalition and Pennsylvania Independent Oil & Gas Association filed.
  23. Mar 04 2021
    Blanket Consent filed by Respondent, State of New Jersey; NJ Department of Envrionmental Protection, et al.
  24. Mar 01 2021
    Brief of petitioner PennEast Pipeline Company, LLC filed.
  25. Mar 01 2021
    Joint appendix (two volumes) filed. (Statement of cost filed).
  26. Feb 22 2021
    Blanket Consent filed by Respondent, New Jersey Conservation Foundation
  27. Feb 10 2021
    Joint motion to set the briefing schedule GRANTED. Petitioner's brief on the merits will be filed on or before March 1, 2021. Respondents briefs on the merits will be filed on or before March 31, 2021. The reply brief will be filed in compliance with Rule 25.3.
  28. Feb 08 2021
    Joint motion to set the briefing schedule filed by the parties.
  29. Feb 05 2021
    Blanket Consent filed by Petitioner, PennEast Pipeline Company, LLC
  30. Feb 03 2021
    Petition GRANTED. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Did the Court of Appeals properly exercise jurisdiction over this case? The case will be set for argument in the April 2021 argument session.
  31. Jan 07 2021
    DISTRIBUTED for Conference of 1/22/2021.
  32. Dec 23 2020
    Supplemental brief of respondents State of New Jersey; NJ Department of Envrionmental Protection, et al. filed.
  33. Dec 09 2020
    Brief amicus curiae of United States filed.
  34. Jun 29 2020
    The Solicitor General is invited to file a brief in this case expressing the views of the United States.
  35. Jun 09 2020
    DISTRIBUTED for Conference of 6/25/2020.
  36. Jun 09 2020
    Reply of petitioners PennEast Pipeline Company, LLC filed. (Distributed)
  37. Jun 03 2020
    Letter waiving the 14-day waiting period for the distribution of the petition for a writ of certiorari pursuant to Rule 15.5 filed.
  38. Jun 02 2020
    Brief of respondents State of New Jersey; NJ Department of Envrionmental Protection, et al. in opposition filed.
  39. Jun 02 2020
    Waiver of right of respondent New Jersey Conservation Foundation to respond filed.
  40. May 01 2020
    Motion to extend the time to file a response is granted in part; the time is extended to and including June 2, 2020, for all respondents.
  41. Apr 30 2020
    Motion to extend the time to file a response from May 13, 2020 to June 12, 2020, submitted to The Clerk.
  42. Apr 30 2020
    Response to motion from petitioner PennEast Pipeline Company, LLC filed.
  43. Apr 13 2020
    Response Requested. (Due May 13, 2020)
  44. Apr 01 2020
    DISTRIBUTED for Conference of 4/17/2020.
  45. Mar 23 2020
    Brief amicus curiae of Columbia Gas Transmission, LLC filed.
  46. Mar 23 2020
    Brief amici curiae of Pennslvania Manufacturers' Association, et al. filed.
  47. Mar 23 2020
    Brief amici curiae of United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, et al. filed.
  48. Mar 23 2020
    Waiver of New Jersey Conservation Foundation of right to respond not accepted for filing. (March 24, 2020)
  49. Mar 23 2020
    Waiver of right of respondent New Jersey Conservation Foundation to respond filed.
  50. Mar 23 2020
    Brief amicus curiae of Consumer Energy Alliance filed.
  51. Mar 23 2020
    Brief amicus curiae of Energy Equipment and Infrastructure Alliance filed.
  52. Mar 23 2020
    Brief amici curiae of Interstate Natural Gas Association of America, American Gas Association, American Petroleum Institute filed.
  53. Mar 23 2020
    Brief amici curiae of The Chamber of Commerce of the United States of America and the Pennsylvania Chamber of Business and Industry filed.
  54. Mar 23 2020
    Waiver of right of respondents State of New Jersey; NJ Department of Envrionmental Protection, et al. to respond filed.
  55. Mar 20 2020
    Brief amicus curiae of Marcellus Shale Coalition and Pennsylvania Independent Oil & Gas Association filed.
  56. Mar 20 2020
    Brief amicus curiae of Industrial Energy Consumers of America filed.
  57. Mar 09 2020
    Blanket Consent filed by Petitioner, PennEast Pipeline Company, LLC.
  58. Feb 18 2020
    Petition for a writ of certiorari filed. (Response due March 23, 2020)
  59. Jan 27 2020
    Application (19A836) granted by Justice Alito extending the time to file until March 4, 2020.
  60. Jan 24 2020
    Application (19A836) to extend the time to file a petition for a writ of certiorari from February 3, 2020 to March 4, 2020, submitted to Justice Alito.
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