Document Type

Case Note


In 2021 the United States Supreme Court decided in the case PennEast Pipeline Co. v. New Jersey that Section 717(h) of the Natural Gas Act authorized the Federal Energy Regulatory Commission (FERC) to delegate the government’s eminent domain power to private companies. The Court’s decision allows a private company to condemn all “necessary rights-of-way,” whether privately-owned or state-owned land. This case note explores the history of the government’s eminent domain power and the states’ Eleventh Amendment immunity from lawsuits. The majority opinion in PennEast reasoned that the states waived their sovereign immunity at the ratification of the Constitution. Thus, according to the majority PennEast’s condemnation of New Jersey-owned land to build a pipeline does not offend state sovereignty. This Note provides the legal background for the claims at issue in PennEast and examines the case’s procedural posture. Ultimately, this Note concludes that the United States Supreme Court decided the case incorrectly. The idea that a nongovernment party can take land from a nonconsenting state is contrary to state sovereignty and the Eleventh Amendment.

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