Short answer: yes, with a caveat. For why there's an asterisk on this one, take a look at the Supreme Court's electronic docket for PennEast Pipeline Co., LLC v. New Jersey, No. 19-1039 (cert. petition Feb. 20, 2020) (a case we've been following), and tell me whether you think there's anything unusual about the list of parties, amici, and their counsel.
SCOTUS Überlawyers? Check. Big well-funded parties? Check. Heavy-hitter amici? Check.
But the one thing missing, we noticed, was the property owners' bar. No Mike Berger, neither of the Ilyas (Somin or Shapiro), no PLF, no IJ, no Carolyn Elefant, no Chris Johns, no NFIB, none of the other individuals or groups who often weigh in on property questions on either side (and yes, no Owners' Counsel). This might strike you as odd, in a case where the Question Presented is about eminent domain:
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.
The issue is one we've dealt with repeatedly here, the question of the authority of private pipeline companies to preemptively seize property under the Natural Gas Act, even though the NGA does not delegate to these companies the quick take power. A situation that one D.C. Circuit judge noted was "kafkaesque."
We don't get that many opportunities to ask the Court to take a look at eminent domain issues, so why are all the pros sitting on the sidelines on this one?
As we pointed out in this post (about the Third Circuit's opinion), this case involves a special property owner on the target end of eminent domain, the government. In this case, the State of New Jersey. Federal courts (including the Third Circuit) have pretty much blown off any private property owner that has challenged the extra-statutory take-now-decide-whether-to-pay-later scheme.
But now that it is government property -- big deal! You know where this is heading: Eleventh Amendment immunity. You can't sue a state in federal court to take its property, private condemnor, argues New Jersey, you can only sue us in our own courts! (And we know how that one will go, don't we.)
In short, this case is a fight between two condemnors. This is the caveat that we noted at the start of this post. If granted, don't expect big things from the Court, and it will not likely do anything to fix the faux-quick-take regime, other than maybe a passing remark saying "good issue, but not now." Could the Court muddy the waters up even more (like the Third Circuit sorta did in its discussion of orders of condemnation)? Yes, for sure.
So follow along, but don't expect the needle to move much while the "big leaguers" slug it out over which court can determine that private property owners have little procedural or substantive opportunity to object to NGA pipeline takings.
But all snark aside, yes, we shall continue to follow this case. More here ("New Jersey Says High Court Should Reject Pipeline Builder's Case") and here ("NJ tells high court not to bite on 'overstated' impacts in pitch from PennEast").
