New Jersey’s Gas Pipeline Veto

Close by the editorial staff

The editorial office

April 26, 2021, 6:37 p.m. ET


Photo:

Getty Images / iStockphoto

The Biden Administration is not a fan of fossil fuels. But even it contradicts New Jersey’s astute argument in a case where the Supreme Court will hear Wednesday that the Constitution gives states a veto on interstate gas pipelines that exceeds federal regulatory and judicial scrutiny.

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 included more than 200 meetings with officials. About 70 changes were made to the route during the review.

New Jersey attempted to block the pipeline by asserting its sovereign immunity under the Eleventh Amendment to block the conviction of 42 state lots needed to build the pipeline.

As soon as FERC has certified a pipeline, the Natural Gas Act delegates the pre-eminent domain power of the federal government to the pipeline company. Other federal laws delegate significant federal power to private parties to private parties to build railroads and transmission lines, though many explicitly elaborate state ownership. The Natural Gas Act does not provide for such a spin-off.

Still, in the present case, New Jersey argues in 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 pre-eminent domain delegation to try state sovereign property in federal court.

But as the acting US attorney general explains in a brief support from PennEast, New Jersey is launching a “collateral attack” on the authority of FERC and the congressional regulatory scheme set out in the Natural Gas Act. New Jersey only partially claims ownership and control of 40 of the 42 parcels in question.

It would be virtually impossible to build a pipeline that doesn’t cross a package that New Jersey doesn’t want to control. The same is true in every state. According to New Jersey’s argument, any state could block a FERC-approved pipeline by simply denying a developer access to property it allegedly controls.

Congress wanted to prevent this when it amended the Natural Gas Act in 1947 by delegating the significant domain power of the federal government to pipeline companies. The important domain delegation of Congress was supposed to prevent states from disrupting international trade.

But now New Jersey is trying to block the pipeline to hinder fossil fuel development in Pennsylvania. This is a direct attack on the Supremacy and Commerce clauses of the Constitution. The constitution grants states some sovereign powers, but New Jersey behaves as if it were a separate sovereign nation.

Journal Editorial Report: Paul Gigot interviews environmentalist Björn Lomborg. Image: Christopher Furlong / Getty Images

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