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SUPREME COURT OF THE UNITED STATES
_________________
No. 19–1039
_________________
PENNEAST PIPELINE COMPANY, LLC, PETITIONER
v. NEW JERSEY, et al.
on writ of certiorari to the united states
court of appeals for the third circuit
[June 29, 2021]
Chief Justice Roberts delivered the opinion of
the Court.
Eminent domain is the power of the government to
take property for public use without the consent of the owner. It
can be exercised either by public officials or by private parties
to whom the power has been delegated. And it can be exercised
either through the initiation of legal proceedings or simply by
taking possession up front, with compensation to follow. Since the
founding, the United States has used its eminent domain authority
to build a variety of infrastructure projects. It has done so on
its own and through private delegatees, and it has relied on legal
proceedings and upfront takings. It has also used its power against
both private property and property owned by the States.
This case involves one of the ways the federal
eminent domain power can be exercised: through legal proceedings
initiated by private delegatees against state-owned property.
Specifically, we are asked to decide whether the Federal Government
can constitutionally confer on pipeline companies the authority to
condemn necessary rights-of-way in which a State has an interest.
We hold that it can. Although nonconsenting States are generally
immune from suit, they surrendered their immunity from the exercise
of the federal eminent domain power when they ratified the
Constitution. That power carries with it the ability to condemn
property in court. Because the Natural Gas Act delegates the
federal eminent domain power to private parties, those parties can
initiate condemnation proceedings, including against state-owned
property.
I
A
Natural gas has been a part of the Nation’s
energy supply since at least the 1820s, when an “enterprising
gunsmith” named William Aaron Hart developed a natural gas well
near Fredonia, New York. D. Waples, The Natural Gas Industry in
Appalachia 12 (2d ed. 2012). Initially, difficulties in
transporting natural gas limited its distribution, as the available
pipeline technology did not allow producers to reach the sprawling
American markets. See Tarr, Transforming an Energy System, in The
Governance of Large Technical Systems 26 (O. Coutard ed. 1999).
Over the following century, however, that technology slowly
improved. In 1891, one of the first interstate pipelines—albeit a
rudimentary and inefficient one—was built to carry natural gas from
central Indiana to Chicago. And in the 1920s, development began in
earnest on the country’s pipeline infrastructure. See
id.,
at 27–28; J. Speight, Natural Gas 20–21, 26 (2007).
In 1938 Congress passed the Natural Gas Act, ch.
556, 52Stat. 821, to regulate the transportation and sale of
natural gas in interstate commerce. Congress vested the Federal
Power Commission (now the Federal Energy Regulatory Commission)
with the authority to administer the NGA, including by approving
the construction and extension of interstate pipelines. The NGA
provides that in order to build an interstate pipeline, a natural
gas company must obtain from FERC a certificate reflecting that
such construction “is or will be required by the present or future
public convenience and necessity.” 15 U. S. C. §717f(e).
The NGA also provides that, before issuing a certificate of public
convenience and necessity, FERC “shall set the matter for hearing
and shall give such reasonable notice of the hearing thereon to all
interested persons.” §717f(c)(1)(B).
As originally enacted, the NGA did not identify
a mechanism for certificate holders to secure property rights
necessary to build pipelines. Natural gas companies were instead
left to rely on state eminent domain procedures, which were
frequently made unavailable to them. In some States, the eminent
domain power could be exercised only if the operation of a pipeline
would benefit residents. See S. Rep. No. 429, 80th Cong.,
1st Sess., 2 (1947) (collecting cases). In others, statutory and
constitutional provisions denied state eminent domain power to
corporations from other States. See
id., at 2–3. The result
was that certificate holders often had only an illusory right to
build.
Congress acted to remedy this defect. In 1947,
it amended the NGA to authorize certificate holders to exercise the
federal eminent domain power. See ch. 333, 61Stat. 459.
Under 15 U. S. C. §717f(h):
“When any holder of a certificate of
public convenience and necessity cannot acquire by contract, or is
unable to agree with the owner of property to the compensation to
be paid for, the necessary right-of-way to construct, operate, and
maintain a pipe line or pipe lines for the transportation of
natural gas . . . , it may acquire the same by the
exercise of the right of eminent domain in the district court of
the United States for the district in which such property may be
located, or in the State courts.”
By enabling FERC to vest natural gas companies
with the federal eminent domain power, the 1947 amendment ensured
that certificates of public convenience and necessity could be
given effect.
B
Petitioner PennEast Pipeline Co. is a joint
venture owned by several energy companies. In 2015, PennEast
applied to FERC for a certificate of public convenience and
necessity authorizing the construction of a 116-mile pipeline from
Luzerne County, Pennsylvania, to Mercer County, New Jersey. FERC
published notice of PennEast’s application in the Federal Register,
and subsequently received thousands of comments in writing and at
public hearings. FERC then issued a draft environmental impact
statement for the project, which yielded thousands of additional
comments. PennEast made a number of route modifications in response
to the concerns commenters had raised.
In January 2018, FERC granted PennEast a
certificate of public convenience and necessity. FERC later denied
rehearing of this decision, and several parties, including
respondent New Jersey, petitioned for review in the D. C.
Circuit. The D. C. Circuit has held those proceedings in
abeyance pending resolution of this case.
Weeks after FERC granted its application,
PennEast filed various complaints in Federal District Court in New
Jersey. PennEast sought to exercise the federal eminent domain
power under §717f(h) to obtain rights-of-way along the pipeline
route approved by FERC, and to establish just compensation for
affected owners. PennEast also sought preliminary and permanent
injunctive relief allowing it take immediate possession of each
property in advance of any award of just compensation. As relevant
here, PennEast sought to condemn two parcels in which New Jersey
asserts a possessory interest, and 40 parcels in which the State
claims nonpossessory interests, such as conservation easements.
PennEast also sought to condemn parcels in which respondent New
Jersey Conservation Foundation holds an interest.
New Jersey moved to dismiss PennEast’s
complaints on sovereign immunity grounds. The District Court denied
the motion, holding that New Jersey was not immune from PennEast’s
exercise of the Federal Government’s eminent domain power.
In re PennEast Pipeline Co., 2018 WL 6584893, *12 (D
NJ, Dec. 14, 2018). Having denied New Jersey’s motion to dismiss on
immunity grounds, the District Court granted PennEast’s requests
for a condemnation order and preliminary injunctive relief.
Id., at *21, *26.
The Third Circuit vacated the District Court’s
order insofar as it awarded PennEast relief with respect to New
Jersey’s property interests, and it remanded for dismissal of any
claims against the State.
In re PennEast Pipeline Co.,
938 F.3d 96, 113 (2019). Although the court acknowledged that the
Federal Government can condemn state-owned property, it reasoned
that this power is in fact the product of two separate powers: the
Federal Government’s eminent domain power, on the one hand, and its
ability to sue nonconsenting States, on the other.
Id., at
104. While the Federal Government can delegate its eminent domain
power to private parties, the court found “reason to doubt” that it
can do the same with respect to its exemption from state sovereign
immunity.
Id., at 100. After expressing skepticism as to
whether the Federal Government could ever delegate this exemption,
see
id., at 105–111, the court determined that it did not
need to “definitively resolve that question,” because “nothing in
the NGA indicates that Congress intended to do so,”
id., at
111. In reaching this determination, the Third Circuit relied on
this Court’s precedents holding that Congress cannot abrogate state
sovereign immunity in the absence of an “ ‘unmistakably
clear’ ” statement.
Ibid. (quoting
Blatchford v.
Native Village of Noatak,
501 U.S.
775, 786 (1991)). Concluding that §717f(h) did not clearly
delegate to certificate holders the Federal Government’s ability to
sue nonconsenting States, the court held that PennEast was not
authorized to condemn New Jersey’s property. 938 F. 3d, at
111–113.
We granted certiorari to determine whether the
NGA authorizes certificate holders to condemn land in which a State
claims an interest. 592 U. S. ___ (2021).
II
We begin by addressing a jurisdictional issue
raised by the United States. As just noted, the Third Circuit ruled
in New Jersey’s favor based on the State’s statutory argument that
the NGA did not delegate to certificate holders the right to file
condemnation actions against nonconsenting States. The United
States now argues that the Third Circuit lacked jurisdiction to
decide that question under 15 U. S. C. §717r(b), which
gives the court of appeals reviewing FERC’s certificate order
(here, the D. C. Circuit) “exclusive” jurisdiction to “affirm,
modify, or set aside such order.” According to the United States,
New Jersey’s statutory argument, if accepted, would modify FERC’s
order because FERC “expressly stated” in the order that PennEast
“would have authority to acquire the necessary land or property to
construct the approved facilities by exercising the right of
eminent domain.” Brief for United States as
Amicus Curiae 15
(internal quotation marks omitted).
PennEast and the respondents both argue that the
United States is wrong. We agree. New Jersey does not seek to
modify FERC’s order; it asserts a defense against the condemnation
proceedings initiated by PennEast. To determine whether the
District Court correctly rejected New Jersey’s defense, the Third
Circuit needed to decide whether §717f(h) grants natural gas
companies the right to bring condemnation suits against States. Its
conclusion that §717f(h) does not authorize such suits did not
“modify” or “set aside” FERC’s order, which neither purports to
grant PennEast the right to file a condemnation suit against States
nor addresses whether §717f(h) grants that right. This case is thus
unlike
Tacoma v.
Taxpayers of Tacoma,
357 U.S.
320 (1958), in which we held that the Federal Power Act’s
similarly worded exclusive-review provision barred a State from
arguing that a licensee could not exercise the rights granted to it
by the license itself. Contrary to the United States’ argument, New
Jersey’s appeal is not a collateral attack on the FERC order.
III
Turning to New Jersey’s sovereign immunity
defense, we begin by discussing the federal eminent domain power.
Since the founding, the Federal Government has exercised its
eminent domain authority through both its own officers and private
delegatees. And it has used that power to take property interests
held by both individuals and States. Section 717f(h) is an
unexceptional instance of this established practice.
A
Governments have long taken property for
public use without the owner’s consent. Although the term “eminent
domain” appears to have been coined by Grotius, see 2 De Jure Belli
ac Pacis 807 (1646 ed., F. Kelsey transl. 1925), the history of the
power may stretch back to biblical times, see Bell, Private
Takings, 76 U. Chi. L. Rev. 517, 524–525 (2009). In England
and the early Colonies, a host of statutes authorized the use of
eminent domain for the construction of roads, bridges, and river
improvements, among other projects. See Stoebuck, A General Theory
of Eminent Domain, 47 Wash. L. Rev. 553, 561–562 (1972). Those
vested with the power could either initiate legal proceedings to
secure the right to build, or they could take property up front and
force the owner to seek recovery for any loss of value. See 1
Nichols on Eminent Domain §1.22[11–12] (3d ed. 2021); see also
Knick v.
Township of Scott, 588 U. S. ___, ___
(2019) (slip op., at 3) (contrasting “direct condemnation” with
“inverse condemnation”).
When the Constitution and Bill of Rights were
ratified, they did not include the words “eminent domain.” The
Takings Clause of the Fifth Amendment (“nor shall private property
be taken for public use, without just compensation”) nevertheless
recognized the existence of such a power. Shortly after the
founding, the Federal Government began exercising its eminent
domain authority in areas subject to exclusive federal
jurisdiction. See,
e.
g., Act of Mar. 3, 1809, 2Stat.
539 (authorizing construction of turnpike road in the District of
Columbia); see also
Custiss v.
Georgetown &
Alexandria Turnpike Co., 6 Cranch 233 (1810) (suit by one of
Martha Washington’s grandsons to quash inquisition into value of
land pursuant to Act).
By the second half of the 19th century, however,
this Court confirmed that federal eminent domain extended to
property within state boundaries as well. In
Kohl v.
United States,
91 U.S.
367 (1876), we held that the United States could condemn land
in Ohio to construct a federal building. We reasoned that “[t]he
powers vested by the Constitution in the general government demand
for their exercise the acquisition of lands in all the States.”
Id., at 371. And we noted that “[t]he right of eminent
domain was one of those means well known when the Constitution was
adopted, and employed to obtain lands for public uses.”
Id.,
at 372. The federal eminent domain power, we said, “can neither be
enlarged nor diminished by a State. Nor can any State prescribe the
manner in which it must be exercised.”
Id., at 374. And to
avoid any doubt, we added that “[t]he consent of a State can never
be a condition precedent to [the] enjoyment” of federal eminent
domain.
Ibid.
While
Kohl involved the condemnation of
private land, we have since explained that federal eminent domain
applies to state property interests as well. In
Oklahoma ex rel.
Phillips v.
Guy F. Atkinson Co.,
313
U.S. 508 (1941), we upheld an Act of Congress authorizing
construction of a dam and a reservoir that would inundate thousands
of acres of state-owned land. There, we made explicit a point that
was implicit in
Kohl’s reasoning: “The fact that land is
owned by a state is no barrier to its condemnation by the United
States.” 313 U. S., at 534.
B
For as long as the eminent domain power has
been exercised by the United States, it has also been delegated to
private parties. It was commonplace before and after the founding
for the Colonies and then the States to authorize the private
condemnation of land for a variety of public works. See Bell, 76 U.
Chi. L. Rev.
, at 545; see generally,
e.g., Hart,
The Maryland Mill Act, 1669–1766, 39 Am. J. Legal Hist. 1 (1995).
The Federal Government was no different. As early as 1809, Congress
authorized private parties to exercise the eminent domain
power—including through the initiation of direct condemnation
proceedings—within areas subject to federal jurisdiction. See
supra, at 8; see also Act of Mar. 2, 1831, 4Stat. 477.
In the years following
Kohl, the Court
confirmed that private delegatees can exercise the federal eminent
domain power within the States as well. Our decision in
Luxton v.
North River Bridge Co.,
153 U.S.
525 (1894), is clear on this point. Congress authorized a
corporation to build a bridge between New York and New Jersey, and
to condemn property as necessary along the way.
Id., at
525–528 (statement of the case); see Act of July 11, 1890, ch. 669,
26Stat. 268. Luxton—who owned land in Hoboken against which the
corporation had brought condemnation proceedings—objected on the
ground that Congress had unconstitutionally delegated its eminent
domain power to the corporation. 153 U. S., at 527–528
(statement of the case). We rejected Luxton’s challenge, explaining
that Congress “may, at its discretion, use its sovereign powers,
directly or through a corporation created for that object, to
construct bridges for the accommodation of interstate commerce.”
Id., at 530. These powers, we noted, could be exercised
“with or without a concurrent act of the State in which the lands
lie.”
Ibid.
State property was not immune from the exercise
of delegated eminent domain power. In fact, this is not the first
time New Jersey has tried to thwart such a delegation. In
Stockton v.
Baltimore &
N.
Y.
R.
Co., 32 F. 9 (CC NJ
1887), Justice Bradley, riding circuit, considered a challenge by
New Jersey to an Act of Congress authorizing a New York corporation
to build a bridge on state-owned land.
Id., at 9–11; see Act
of June 16, 1886, ch. 417, 24Stat. 78. The Secretary of War had
approved the plans for the bridge, as required by the Act, and the
corporation had begun preparing for construction. 32 F., at 11. New
Jersey sought an injunction, arguing among other things that an
out-of-state corporation could not operate within its borders, and
that the corporation could not take its land without its consent.
Id., at 13, 17. Justice Bradley dismissed these arguments,
reasoning that “if congress, in the execution of its powers,
chooses to employ the intervention of a proper corporation, whether
of the state, or out of the state, we see no reason why it should
not do so.”
Id., at 14. Justice Bradley also presciently
noted that New Jersey’s position, if accepted, would give rise to
the “dilemma of requiring the consent of the state in almost every
case of an interstate line of communication by railroad, for hardly
a case can arise in which some property belonging to a state will
not be crossed.”
Id., at 17.
Just a few years after
Stockton, Justice
Bradley’s views were adopted by the full Court. In
Cherokee
Nation v.
Southern Kansas R. Co.,
135 U.S.
641 (1890), the Cherokees argued that a private railroad
company could not exercise the federal eminent domain power
pursuant to an Act of Congress.
Id., at 655–656. The Act
authorized the company to condemn land, including land owned by the
Cherokees, through a set of procedures for determining just
compensation. See Act of July 4, 1884, ch. 179, 23Stat. 73.
This Court concluded that the Cherokees’ challenge was meritless.
We quoted at length from
Stockton’s discussion of the
Federal Government’s superior eminent domain power within the
States. See 135 U. S., at 656 (quoting 32 F., at 19). And
although
Stockton involved state-owned land, whereas
Cherokee Nation involved property owned by an Indian Tribe,
the Court said that “[i]t would be very strange if the national
government, in the execution of its rightful authority, could
exercise the power of eminent domain in the several States, and
could not exercise the same power in a Territory occupied by an
Indian nation or tribe.” 135 U. S.
, at 656–657. It made
no difference, moreover, that the Cherokees’ property was condemned
by a private delegatee, as the delegatee was “none the less a fit
instrumentality to accomplish the public objects contemplated by
the act.”
Id., at 657.
C
The cases above paint a clear picture: Since
its inception, the Federal Government has wielded the power of
eminent domain, and it has delegated that power to private parties.
We have observed and approved of that practice. The eminent domain
power may be exercised—whether by the Government or its
delegatees—within state boundaries, including against state
property. We have also stated, as a general matter, that “the
United States may take property pursuant to its power of eminent
domain in one of two ways: it can enter into physical possession of
property without authority of a court order; or it can institute
condemnation proceedings under various Acts of Congress providing
authority for such takings.”
United States v.
Dow,
357 U.S.
17, 21 (1958). The same is true for private delegatees.
Luxton, for example, arose out of a condemnation proceeding
initiated by a corporation, 153 U. S., at 525–528 (statement
of the case), whereas
Stockton was a suit brought by the
State after preparations for construction had already begun, 32 F.,
at 11.
Section 717f(h) follows this path. As described
above, a natural gas company must obtain a certificate of public
convenience and necessity from FERC in order to build a pipeline.
Once the certificate is obtained, if the company “cannot acquire by
contract, or is unable to agree with the owner of property to the
compensation to be paid for, the necessary right-of-way” to build
the pipeline, then the company “may acquire the same by the
exercise of the right of eminent domain.” §717f(h). This delegation
is categorical. No one disputes that §717f(h) was passed
specifically to solve the problem of States impeding interstate
pipeline development by withholding access to their own eminent
domain procedures. See S. Rep. No. 429, at 2–4. And it
was understood both at the time the provision was enacted and over
the following decades that States’ property interests would be
subject to condemnation. See,
e.g., Hearings on S. 734
et al. before the Subcommittee of the Senate Committee on
Interstate and Foreign Commerce, 80th Cong., 1st Sess., 105 (1947)
(opponents of the bill that would become §717f(h) objecting on the
ground that it would “permit[ ] the taking of State-owned
lands used for State purposes by a private company”);
Tenneco
Atlantic Pipeline Co., 1 FERC ¶63,025, p. 65,203 (1977)
(“the eminent domain grant to persons holding [certificates of
public convenience and necessity] applies equally to private and
state lands”). By its terms, §717f(h) delegates to certificate
holders the power to condemn any necessary rights-of-way, including
land in which a State holds an interest.
IV
The respondents and the principal dissent do
not dispute that the NGA empowers certificate holders to condemn
private property. They argue instead that sovereign immunity bars
condemnation actions against nonconsenting States. And even if such
actions are constitutionally permissible, the respondents (but not
the dissent) contend that §717f(h) does not speak with sufficient
clarity to authorize them. We address each of these arguments in
turn.
A
“States’ immunity from suit is a fundamental
aspect of the sovereignty which the States enjoyed before the
ratification of the Constitution.”
Alden v.
Maine,
527 U.S.
706, 713 (1999). When “the States entered the federal system,”
they did so “with their sovereignty intact.”
Blatchford, 501
U. S., at 779. Although the Court initially held that States
could be subject to suit by citizens of other States, see
Chisholm v.
Georgia, 2 Dall. 419 (1793), the
ratification of the Eleventh Amendment soon corrected this error.
That Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State.” Our decision in
Hans v.
Louisiana,
134 U.S. 1
(1890), clarified that States retain their immunity from suit
regardless of the citizenship of the plaintiff. Since
Hans,
“we have understood the Eleventh Amendment to stand not so much for
what it says, but for the presupposition of our constitutional
structure which it confirms.”
Blatchford, 501 U. S., at
779.
Under our precedents, a State may be subject to
suit only in limited circumstances. A State may of course consent
to suit, although such consent must be “unequivocally expressed.”
Sossamon v.
Texas,
563 U.S.
277, 284 (2011) (internal quotation marks omitted). Congress
may also abrogate state sovereign immunity under the Fourteenth
Amendment,
Fitzpatrick v.
Bitzer,
427 U.S.
445, 456 (1976), again assuming it does so with the requisite
clarity,
Nevada Dept. of Human Resources v.
Hibbs,
538 U.S.
721, 726 (2003). And a State may be sued if it has agreed to
suit in the “plan of the Convention,” which is shorthand for “the
structure of the original Constitution itself.”
Alden, 527
U. S., at 728; see The Federalist No. 81,
pp. 548–549 (J. Cooke ed. 1961) (A. Hamilton). The “plan of
the Convention” includes certain waivers of sovereign immunity to
which all States implicitly consented at the founding. See
Alden, 527 U. S., at 755–756. We have recognized such
waivers in the context of bankruptcy proceedings,
Central Va.
Community College v.
Katz,
546 U.S.
356, 379 (2006); see
Allen v.
Cooper, 589
U. S. ___, ___ (2020) (slip op., at 8), suits by other States,
South Dakota v.
North Carolina,
192 U.S.
286, 318 (1904), and suits by the Federal Government,
United
States v.
Texas,
143 U.S.
621, 646 (1892).
B
The respondents and the dissent argue that
private parties cannot condemn state-owned property under §717f(h)
because there is no applicable exception to sovereign immunity. In
the dissent’s view, PennEast’s suit is barred because §717f(h) is
just another “exercise of Congress’ power to regulate interstate
commerce,” and “Congress cannot authorize private suits against a
nonconsenting State pursuant to its Commerce Clause power.”
Post, at 4 (opinion of Barrett, J.); see also Brief for
Respondent NJCF 22–24. The dissent also contends that States did
not implicitly consent to private condemnation suits when they
ratified the Constitution. See
post, at 4–7; see also Brief
for Respondent NJCF 38–44; Brief for Respondent New Jersey
et al. 13–22.
Beginning with the argument that Congress cannot
subject States to suit pursuant to its commerce power, it is
undoubtedly true under our precedents that—with the exception of
the Bankruptcy Clause, see
Katz, 546 U. S., at
379—“Article I cannot justify haling a State into federal court,”
Allen, 589 U. S., at ___ (slip op., at 7). In
Seminole Tribe of Fla. v.
Florida,
517 U.S.
44 (1996), we held that state sovereign immunity “restricts the
judicial power under Article III, and Article I cannot be used to
circumvent the constitutional limitations placed upon federal
jurisdiction.”
Id., at 72–73.
Seminole Tribe
concluded that States’ inherent immunity from suit would be
“eviscerated” if Congress were allowed to abrogate States’ immunity
pursuant to its Article I powers.
Id., at 64.
But congressional abrogation is not the only
means of subjecting States to suit. As noted above, States can also
be sued if they have consented to suit in the plan of the
Convention. And where the States “agreed in the plan of the
Convention not to assert any sovereign immunity defense,” “no
congressional abrogation [is] needed.”
Allen, 589
U. S., at ___ (slip op., at 8).
As the cases discussed in Part III show, the
States consented in the plan of the Convention to the exercise of
federal eminent domain power, including in condemnation proceedings
brought by private delegatees. The plan of the Convention reflects
the “fundamental postulates implicit in the constitutional design.”
Alden, 527 U. S., at 729. And we have said regarding
the exercise of federal eminent domain within the States that one
“postulate of the Constitution [is] that the government of the
United States is invested with full and complete power to execute
and carry out its purposes.”
Cherokee Nation, 135
U. S., at 656 (quoting
Stockton, 32 F., at 19).
Put another way, when the States entered the
federal system, they renounced their right to the “highest dominion
in the lands comprised within their limits.” 135 U. S., at 656
(quoting 32 F., at 19). The plan of the Convention contemplated
that States’ eminent domain power would yield to that of the
Federal Government “so far as is necessary to the enjoyment of the
powers conferred upon it by the Constitution.”
Kohl, 91
U. S., at 372. As we explained in
Cherokee Nation
(again quoting Justice Bradley in
Stockton), “[i]f it is
necessary that the United States government should have an eminent
domain still higher than that of the State, in order that it may
fully carry out the objects and purposes of the Constitution, then
it has it.” 135 U. S., at 656 (quoting 32 F., at 19). The
Court left no doubt about the importance of the proposition: “This
is not a matter of words, but of things.” 135 U. S., at 656
(quoting 32 F., at 19). And as we have emphasized in cases
involving delegations of the federal eminent domain power, Congress
“may, at its discretion, use its sovereign powers, directly or
through a corporation created for that object.”
Luxton, 153
U. S., at 530. PennEast’s condemnation action to give effect
to the federal eminent domain power falls comfortably within the
class of suits to which States consented under the plan of the
Convention.
The respondents and the dissent do not dispute
that the Federal Government enjoys a power of eminent domain
superior to that of the States. Nor do they dispute that the
Federal Government can delegate that power to private parties. They
instead assert that the only “question is whether Congress can
authorize a private party to bring a condemnation suit against a
State.”
Post, at 5; see Brief for Respondent NCJF 40; Brief
for Respondent New Jersey et al. 15. And they argue that
because there is no founding-era evidence of such suits, States did
not consent to them when they entered the federal system. See
post, at 5–7; Brief for Respondent NCJF 39–42; Brief for
Respondent New Jersey et al. 13–16.
The flaw in this reasoning is that it attempts
to divorce the eminent domain power from the power to bring
condemnation actions—and then argue that the latter, so carved out,
cannot be delegated to private parties with respect to state-owned
lands. But the eminent domain power is inextricably intertwined
with the ability to condemn. We have even at times equated the
eminent domain power with the power to bring condemnation
proceedings. See
Agins v.
City of Tiburon,
447 U.S.
255, 258, n. 2 (1980), abrogated on other grounds by
Lingle v.
Chevron U. S. A. Inc.,
544 U.S.
528, 532 (2005). Separating the eminent domain power from the
power to condemn—when exercised by a delegatee of the Federal
Government—would violate the basic principle that a State may not
diminish the eminent domain authority of the federal sovereign. See
Kohl, 91 U. S., at 374 (“If the United States have the
power, it must be complete in itself. It can neither be enlarged
nor diminished by a State.”).
If private parties authorized by the Federal
Government were unable to condemn States’ property interests, then
that would leave delegatees with only one constitutionally
permissible way of exercising the federal eminent domain power:
Take property now and require States to sue for compensation
later.[
1]* It is difficult to
see how such an arrangement would vindicate the principles
underlying state sovereign immunity. Whether the purpose of that
doctrine is to “shield[ ] state treasuries” or “accord the
States the respect owed them as joint sovereigns,”
Federal
Maritime Comm’n v.
South Carolina Ports Authority,
535
U.S. 743, 765 (2002) (internal quotation marks omitted), it
would hardly be served by favoring private or Government- supported
invasions of state-owned lands over judicial proceedings.
Perhaps sensing the incongruity of such a
result, New Jersey has taken the extreme stance that there is
no constitutional mechanism for Federal Government
delegatees to exercise the eminent domain power against the States.
See Tr. of Oral Arg. 86. This position is untenable. “[J]ust as
permission to harvest the wheat on one’s land implies permission to
enter on the land for that purpose,” A. Scalia & B. Garner,
Reading Law 192 (2012), so too does authorization to take property
interests imply a means through which those interests can be
peaceably transferred. An eminent domain power that is incapable of
being exercised amounts to no eminent domain power at all. And that
is contrary to the plan of the Convention for the reasons discussed
in
Kohl,
Stockton,
Cherokee Nation, and
Luxton.
The dissent, for its part, declines to say
whether Congress could authorize a certificate holder to take
possession of state property through upfront entry. See
post, at 7–8, and n. 3. The dissent gestures at other
judicial and administrative procedures that delegatees might be
able to use to take state property. See
post, at 8,
n. 3. But such procedures would almost certainly meet the same
fate as traditional condemnation actions under the dissent’s
analysis. See
Federal Maritime Comm’n v.
South Carolina
Ports Authority,
535 U.S.
743, 760–761 (2002).
Furthermore, the respondents and the dissent
prove too much by emphasizing the historical absence of private
condemnation suits against state-owned lands. As a preliminary
matter, they appear to cast doubt on the provenance of the Federal
Government’s ability to exercise its eminent domain power within
the States. See
post, at 6; Brief for Respondent NCJF 40–42;
Brief for Respondent New Jersey et al. 16–18. But we resolved
in
Kohl and its progeny that the Federal Government has such
an ability—including against state-owned property—and that the
exercise of the federal eminent domain power was a means that was
“known and appropriate” at the time of the founding. 91 U. S.,
at 372. We made very clear that this conclusion was unaffected by
the fact that the federal eminent domain power had “not heretofore
been exercised adversely” within the States, because “the non-user
of a power does not disprove its existence.”
Id., at
373.
The respondents and the dissent recognize,
moreover, that States consented in the plan of the Convention to
suits by the Federal Government, even though that proposition was
not established until 1892 in
United States v.
Texas.
See
post, at 6–7; Brief for Respondent NCJF 37; Brief for
Respondent New Jersey et al. 20–21; see also
Principality
of Monaco v.
Mississippi,
292 U.S.
313, 329 (1934);
Blatchford, 501 U. S., at 781–782.
The Court in
Texas—which was decided even more recently than
Kohl,
Stockton, and
Cherokee Nation—did not
insist upon examples from the founding era of federal suits against
States. The Court instead reasoned as a structural matter that such
suits were authorized because it “does no violence to the inherent
nature of sovereignty” for a State to be sued by “the government
established for the common and equal benefit of the people of all
the States.” 143 U. S., at 646. The structural considerations
discussed above likewise show that States consented to the federal
eminent domain power, whether that power is exercised by the
Government or its delegatees. And that is true even in the absence
of a perfect historical analogue to the proceedings PennEast
initiated below.
The dissent argues that the Court in
Texas relied not only on “constitutional structure,” but
also on “textual cues.”
Post, at 6. But the only relevant
constitutional text in
Texas was a grant of federal
jurisdiction, and that cannot explain States’ implicit consent in
the plan of the Convention to suits by the Federal Government. If
it could, then the extension of the judicial power to controversies
“between a State and Citizens of another State,” Art. III, §2,
cl. 1, would suggest that
Chisholm v.
Georgia
correctly held that nonconsenting States could be subject to
private suit. And the existence of federal jurisdiction over
controversies “between a State . . . and foreign States,”
Art. III, §2, cl. 1, would suggest that States consented
in the plan of the Convention to suit by other nations,
notwithstanding our holding to the contrary in
Principality of
Monaco v.
Mississippi. A grant of judicial power does
not imply an abrogation of sovereign immunity.
Texas rested
on “the consent of the State” in the constitutional plan, as does
our decision today. 143 U. S., at 646.
As a final point, the other dissent offers a
different theory—that even if the States consented in the plan of
the Convention to the proceedings below, the Eleventh Amendment
nonetheless divests federal courts of subject-matter jurisdiction
over a suit filed against a State by a diverse plaintiff. See
post, at 3–4 (opinion of Gorsuch, J.). But under our
precedents that no party asks us to reconsider here, we have
understood the Eleventh Amendment to confer “a personal privilege
which [a State] may waive at pleasure.”
Clark v.
Barnard,
108 U.S.
436, 447 (1883); see,
e.g., Lapides v.
Board
of Regents of Univ. System of Ga.,
535
U.S. 613, 618–619 (2002);
Gunter v.
Atlantic Coast
Line R. Co.,
200 U.S.
273, 284 (1906). When “a State waives its immunity and consents
to suit in federal court, the Eleventh Amendment does not bar the
action.”
Atascadero State Hospital v.
Scanlon,
473 U.S.
234, 238 (1985). Such consent may, as here, be “ ‘inherent
in the constitutional plan.’ ”
McKesson Corp. v.
Division of Alcoholic Beverages and Tobacco, Fla. Dept. of
Business Regulation,
496 U.S.
18, 30 (1990) (quoting
Principality of Monaco, 292
U. S., at 329); see,
e.g., Katz, 546 U. S.,
at 377–378.
C
We conclude by addressing the respondents’
argument (which the dissent does not join) that even if States
agreed in the plan of the Convention to condemnation suits by
Federal Government delegatees, the NGA does not authorize such
suits with the requisite clarity. The Third Circuit adopted this
position below, concluding that §717f(h) did not use the
“unmistakably clear” language necessary to delegate the Federal
Government’s ability to sue nonconsenting States. 938 F. 3d,
at 111 (quoting
Blatchford, 501 U. S., at 786); 938
F. 3d, at 111 (“If Congress had intended to delegate the
federal government’s exemption from sovereign immunity, it would
certainly have spoken much more clearly.”). The respondents renew
their contention before this Court. See Brief for Respondent NCJF
24–31; Brief for Respondent New Jersey et al. 31–39. They note
that we have required “unequivocal textual evidence” when
determining whether a State has expressly consented to suit, or
when evaluating whether Congress has validly abrogated state
sovereign immunity under the Fourteenth Amendment.
Id., at
32 (citing
Sossamon, 563 U. S., at 291;
Hibbs,
538 U. S., at 726). And they argue that this requirement
should apply with equal force in the context of private
condemnation actions against nonconsenting States.
The respondents are certainly correct that a
clear statement is required to subject States to suit in the waiver
and abrogation contexts. But they have again misconstrued the issue
in this case as whether the United States can delegate its ability
to sue States. The issue is instead whether the United States can
delegate its eminent domain power to private parties. Regardless
whether the Federal Government must speak with unmistakable clarity
when delegating its freestanding exemption from state sovereign
immunity (assuming such a delegation is even permissible, see
Blatchford, 501 U. S., at 785), there is no similar
requirement when the Federal Government authorizes a private party
to exercise its eminent domain power. The respondents do not
dispute that the federal eminent domain power can be delegated, or
that §717f(h) speaks with sufficient clarity to delegate the power
to condemn privately owned land. They argue only that §717f(h)
fails to delegate the power to condemn States’ property interests.
But the federal eminent domain power is “complete in itself,”
Kohl, 91 U. S., at 374, and the States consented to the
exercise of that power—in its entirety—in the plan of the
Convention. The States thus have no immunity left to waive or
abrogate when it comes to condemnation suits by the Federal
Government and its delegatees.
V
When the Framers met in Philadelphia in the
summer of 1787, they sought to create a cohesive national sovereign
in response to the failings of the Articles of Confederation. Over
the course of the Nation’s history, the Federal Government and its
delegatees have exercised the eminent domain power to give effect
to that vision, connecting our country through turnpikes, bridges,
and railroads—and more recently pipelines, telecommunications
infrastructure, and electric transmission facilities. And we have
repeatedly upheld these exercises of the federal eminent domain
power—whether by the Government or a private corporation, whether
through an upfront taking or a direct condemnation proceeding, and
whether against private property or state-owned land.
The NGA fits well within this tradition. From
humble beginnings in central Indiana, the Nation’s interstate
pipeline system has grown to span hundreds of thousands of miles.
This development was made possible by the enactment of §717f(h) in
1947. By its terms, §717f(h) authorizes FERC certificate holders to
condemn all necessary rights-of-way, whether owned by private
parties or States. Such condemnation actions do not offend state
sovereignty, because the States consented at the founding to the
exercise of the federal eminent domain power, whether by public
officials or private delegatees. Because the Third Circuit reached
a contrary conclusion, we reverse the judgment below and remand the
case for further proceedings consistent with this opinion.
It is so ordered.
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