In this Order, the Supreme Court granted this cert petition which presents these questions:
Whether a facial challenge to Congress’s delegation of eminent domain power to private parties is properly filed in district court, as this Court held in PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.Whether a facial challenge to Congress’s overly broad delegation of legislative power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.Whether a facial challenge to Congress’s delegation of eminent domain power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.
As the Order notes:
Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Axon Enterprise, Inc. v. FTC, 598 U. S. ___ (2023).
So what is this Axon case the Court refers to? You might want to read some of the amicus briefs filed in the case to find out. All of them are posted on the case's docket here. Or read this summary from the Federalist Society, "Supreme Court Holds That Federal District Courts Have Jurisdiction To Hear Structural Challenges To FTC And SEC."
Or better yet, we refer you to our colleague Michael Realbuto's post on the McKirdy Riskin Olson DellaPelle Condemnation Blog, "SCOTUS Sends Pipeline Eminent Domain Case Back to the District Court." Our read of Axon is that you don't have to ask an agency to pass on the constitutionality of its own actions or the scope of its authority. As Michael writes:
On April 14, 2023, the Court released a unanimous 9-0 decision in Axon holding the district court retains § 1331 jurisdiction over structural separation-of powers challenges because that type of separation-of-powers injury cannot be remedied by the agency itself or the court of appeals. The Court’s April 2023 summary decision in the MVP matter was clearly guided by the holding in Axon and proves to be a victory for the landowners who will now have their day in Court. Notwithstanding the District Court’s ability to hear the MVP case, there are some cases on the books that the landowners must overcome. For example, in Penneast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), the Supreme Court expressly held that the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. While it’s going to be an uphill battle, we are tuned in to see how this fight shapes out.
What do you think will happen on remand? We think we know.
Petition for Writ of Certiorari, Bohon v. Fed. Energy Reg. Comm'n, No. 22-256 (U.S. Sep. 15, 2022)
