Penneast Pipeline Co. v. New Jersey (19-1039)

argument 19-1039

Penneast Pipeline Co. v. New Jersey

Supreme Court of the United States 1h 29m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the constitutional basis for the federal eminent‑domain power over state land?

John G. Roberts 0:00

We will hear argument next in case nineteen ten thirty nine, Pennyast Pipeline versus New Jersey. Mr Clement.

Jeffrey P. Clement 0:09

Mr Chief Justice, may it please the court. Long before the framing, it was clear that eminent domain was an essential element of sovereignty, and that private parties could be deputized to exercise that power for infrastructure projects. Once the federal eminent domain power was exercised, this court made clear that state lands are not immune, but states are entitled to just compensation like other property owners. New Jersey does not take issue with those precedents but still asserts an immunity from the process used to ensure just compensation if not initiated by the federal government itself. That claim fails for two interrelated reasons. First, states acceded to the federal government's superior eminent domain authority in the plan of the Convention.

Jeffrey P. Clement 0:51

In our system of dual sovereignty, only one sovereign can have the ultimate authority over land when the federal and state governments assert conflicting claims. The Supremacy Clause largely settles that debate, and New Jersey concedes that its sovereignty must yield when the federal government decides to take state property. But once it concedes that, it has no immunity left to assert in the proceedings necessary to effectuate the taking. That follows from the immovable property exception, which long predates the framing. No sovereign has ever had immunity from the eminent domain authority of a superior sovereign over immovable property. It also follows from the very nature of eminent domain. Eminent domain that depends on consent is an oxymoron.

Jeffrey P. Clement 1:33

Second, the proceedings here are in rem and can only augment the state treasury. This court has recognized that in rem proceedings pose a lesser threat to state sovereignty. Justices Washington and Story made the same point when the eleventh Amendment was new. And of all IREM actions, eminent domain proceedings pose the least concerns. They allege no wrongdoing, they impose no liability, and they cannot be brought without federal authorization. The whole point of the proceeding is to ensure just compensation for a taking. New Jersey's effort to convert a constitutional remedy into a veto over the federally authorized taking is simply incompatible with our constitutional design.

John G. Roberts 2:12

Mr. Clement, do you have any other uh examples outside the area of eminent domain where the uh federal government can delegate its powers to a private party and then the private party uh can exercise uh though those powers uh in a way that's inconsistent with state rights?

Jeffrey P. Clement 2:34

Uh I I'm not sure we do, Your Honor. I mean in the sense that, you know, I do think there is a long and unbroken tradition of the eminent domain power being uh delegated, or maybe the better way to think about it is that uh a private entity is deputized to exercise the power. Um and I don't think we're asking for any ruling that would extend outside the eminent domain context, but I think all sovereigns, including New Jersey, have recognized that the ability to deputize the uh private actors to exercise the eminent domain power is really essential to developing infrastructure.

John G. Roberts 3:09

Well what what is it that makes the eminent domain power so unique? That it's the only ex the only example we have. It's really uh quite extraordinary to have private parties overriding state immunities.

Jeffrey P. Clement 3:23

Well, I first of all, y Mr Chief Justice, I'm not sure that's the right way to think about it, which is to say I think when somebody like Penn East asks acts pursuant to a deputized eminent domain power, it really is exercising the federal power directly and it's not an ordinary citizen. I think one way to understand that is if Penn East doesn't provide sufficient compensation, it has violated the just compensation clause of the takings. Clause. Now we generally don't think that the takings clause applies to anyone other than a federal actor. It applies here because distinctly you have somebody exercising the federal eminent domain authority.

John G. Roberts 4:00

Why why is this such a uh