We all know that generally, the power of eminent domain includes the authority to enter private property before instituting a condemnation action to take a look to see that the property is suitable for the public use to which the condemning agency intends to put it. Some places the power is expressly acknowledged by statute, in other places it is more an implied part of the power to take. “Precondemnation entry” we call it.

Many of these intrusions on what otherwise is the owner’s sacrosanct right to exclude are relatively minor and not deemed takings, while other, more disruptive intrusions are takings in themselves. Some states require that the entering party provide some kind of compensation, while others let the entering party off the hook entirely.

But can a private for-profit energy company that admittedly does not possess the power of eminent domain force its way onto private property on the theory that it needs entry so the government can evaluate whether to delegate it the power of eminent domain?

In PSEG Renewable Transmission LLC v. Arentz Family, LP, No. 25-1730 (Aug. 6, 2026), the U.S. Court of Appeals thought so.

PSEG, a New Jersey energy company, got federal approval to construct an electricity transmission line through Maryland, which was conditioned on it obtaining a certificate of public convenience from the Maryland Public Service Commission. Maryland deemed PSEG’s application incomplete because it did not include “field-based studies” of the private properties through which the line is anticipated to run.

Exercising their right to say keep out, several owner said no to PSEG’s request for access. PSEG was in a conundrum: it needed access to these properties in order to get eminent domain power from Maryland, but it did not have a means to get on these properties because it lacked the power of eminent domain. How about “desktop studies” asked PSEG, are those good enough? No, said Maryland: the State “continued to require the studies.” Slip op. at 8. Get on the land and take a look, or tough beans.

So PSEG sued the property owners, invoking the federal court’s diversity jurisdiction. What’s the claim, you ask? Is there a right to trespass or enter private property when an owner says no under Maryland law? PSEG claimed there is, asserting it was authorized to enter the land under the precondemnation entry provision in Maryland’s eminent domain code:

Civil engineers, land surveyors, real estate appraisers, and their assistants acting on behalf of the State or of any of its instrumentalities or any body politic or corporate having the power of eminent domain after every real and bona fide effort to notify the owner or occupant in writing with respect to the proposed entry may

Hang on. PSEG isn’t an agent of the State, nor does it posses the power of eminent domain, so how does this statute help? No matter, PSEG sought summary judgment and an injunction allowing it immediate entry. The district court agreed.

The Fourth Circuit affirmed. Viewing the dispute primarily as a question of the construction of the Maryland precondemnation entry statute, the court held that yeah, as an out-of-state energy company PSEG doesn’t, you know, actually possess the power of eminent domain (it lacks the certificate of public convenience) but to read the statute that way would “render the statutory scheme unworkable.” Slip op. at 21. PSEG is a “federal public utility” (which is defined in Maryland law as an entity that does not have, but “may acquire” eminent domain power if issued a certificate of public necessity), and there’s no way the Maryland legislature could have “intended for a federal public utility to obtain a [certificate of public necessity] before it could access properties to conduct the field surveys required for the … application.” Id.

As the Fourth Circuit held:

The General Assembly intended for applicants to become a federal public utility to have a path to obtain a CPCN. If PSEG could not access property to conduct field surveys required for a CPCN application, it would have no viable path. The “findings from” this access are “necessary for determining” whether the power to exercise eminent domain will ultimately be granted. King v. Mayor & Council of Rockville, 447 A.2d 118, 122 (Md. Ct. Spec. App. 1982). That is the purpose of Section 7-207(b)(3)(v), to condition the exercise of eminent domain to condemn property on the issuance of a CPCN. See J.L. Matthews, 792 A.2d at 297 (explaining that legislature can place limits on exercise of inherent eminent domain power); Valsamaki, 916 A.2d at 335 (describing “[c]ondemnation [as] a function of the State’s power of eminent domain”). PSEG must be able to seek access under Section 12-111(a) before it can receive a CPCN.

Slip op. at 22. So what if Maryland law requires a certificate of public convenience before an out-of-state private entity can be delegated eminent domain power: “the district court did not abuse its discretion in finding that PSEG likely gained the power of eminent domain for purposes of access under Section 12-111(a) before the issuance of a CPCN.” Id. It’s enough that Maryland told PSEG to go get field studies to say that PSEG is a condemnor (we’re betting that’s news to Maryland, which declined to treat PSEG like a condemnor).

And what about the right to exclude? Both the district court and the Fourth Circuit paid lip service to the idea that “the right to exclude is one of the most essential sticks in the bundle of property rights,” but held that this is an exception to the right. Maryland property owner do not have the right to exclude public utilities of any sort from entering on their land in anticipation of condemnation. Slip op. at 29.

To which we say oh yes they do, when that entity does not have the power of eminent domain. And what the conclusion that PSEG could obtain the power of eminent domain if only it was able to forcibly enter private property? That “if” is carrying a lot of water here. You know the saying about “if” (if grandma had b***s, she’s be grandpa).

This issue is adjacent to the longstanding divide in the federal courts of appeal under the Natural Gas Act (which delegates to private pipeline operators the federal power of eminent domain, but does not also delegate the power of quick take), where some courts have endorsed the shortcut of using Rule 65 injunctions to allow de facto quick take even though Congress has not authorized quick takes. “No big deal, this is eminent domain and they’re gonna get you eventually, property owners” seems to be the vibe there.

It seems like here, PSEG had a problem created in equal parts by the Maryland statute and the way the Maryland government responded to PSEG’s application. And instead of dealing with these problems by either addressing the statute or convincing Maryland officials and agencies to act better (and suing them if they didn’t), PSEG and the court just took a shortcut, directly through the rights of the property owners. And the Fourth Circuit didn’t bat an eye. It’s pre-eminent domain … and just like eminent domain, you lose property owners.

There may be a need for energy, but that’s not really relevant here. The Fifth Amendment doesn’t allow shortcuts through private property rights.

Or does it?

PSEG Renewable Transmission LLC v. Arentz Family, LP, No. 25-1730 (4th Cir. Aug. 6, 2026)