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Biden DOJ Backs PennEast Gas Pipeline in Supreme Court Fight (1)

March 9, 2021, 6:16 PM; Updated: March 9, 2021, 8:48 PM

The Biden administration is throwing its legal weight behind the PennEast pipeline in a high-stakes Supreme Court case that could affect natural gas projects across the U.S.

The Justice Department urged the high court to overturn a ruling that blocked PennEast from using federal eminent domain authority to take New Jersey land along the $1 billion project’s route. The filing comes as environmental advocates press the Biden administration to shut down or thwart development of other oil and natural gas pipelines.

“The right of eminent domain was well-known at the Founding. As the Court has long recognized, the Constitution conferred that authority on the federal government, including the authority to take State-owned land, for projects within the government’s enumerated powers,” Acting Solicitor General Elizabeth B. Prelogar wrote in the brief.

She added that the authority extends to private parties building projects deemed to be in the public interest, and said the lower court handling the case lacked jurisdiction over the appeal in the first place.

Maintaining Trump Position

The Monday brief comes as a disappointment to some environmental advocates who hoped the Biden administration would withdraw support for the PennEast pipeline. The Federal Energy Regulatory Commission and the Justice Department first backed the company’s legal arguments during the Trump administration.

“PennEast appreciates the continued support of the United States, which underscores this case presents an issue that cuts across party lines,” company spokeswoman Patricia Kornick said in an email. “As the United States’ brief cogently explains, Congress’ language in the Natural Gas Act very clearly authorizes a private party to obtain all land necessary to construct a project that has been determined to be in the public need and safe for the environment.”

Ron Morano, executive director of Affordable Energy for New Jersey, said he hopes “this will be indicative of this administration’s future positions on our energy independence.”

Environmentalists were dismayed by the Biden administration’s move. Maya K. van Rossum, head of the Delaware Riverkeeper Network, said the Justice Department’s decision to support PennEast in the case “is an abuse of power and trust and a failure of the current administration to do its duty to protect people and our environment.”

Backed by Enbridge Inc., Southern Co., and other companies, PennEast would stretch 116 miles across Pennsylvania and New Jersey, as part of a broader buildout of East Coast gas infrastructure. Construction hasn’t started.

The U.S. Court of Appeals for the Third Circuit in 2019 said PennEast couldn’t use eminent domain to take New Jersey state lands because the condemnation would interfere with the state’s sovereign immunity. The Justice Department’s new brief echoes the industry argument that the ruling would give states improper veto power over federally approved projects.

“In light of the long unbroken history of colonial, state, and federal delegations of such authority, there is no basis to conclude that, when the States granted the federal government the eminent-domain power in the plan of the Convention, they silently retained the right to veto delegations of its exercise, as long as they could first obtain any property interest in the land at issue,” the brief says.

The Supreme Court is set to hear arguments in April.

The case is PennEast Pipeline Co. v. New Jersey, U.S., No. 19-1039, 3/8/21.

(Updated with comments in paragraphs 6-8.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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