On September 10th, the U.S. Court of Appeals for the Third Circuit issued a groundbreaking decision (In re PennEast Pipeline Company, LLC), holding that pipeline companies do not have the power to use eminent domain to seize state-owned property in order to build natural gas pipelines. The court held that just because a pipeline developer has the necessary authorization under the federal Natural Gas Act to take private property does not mean that it can take state property as well.  

Instead, the Court recognized that the 11thAmendment — which bars plaintiffs from suing states in federal court without their consent — applies even when the plaintiffs are exercising eminent domain granted by federal law. The upshot is that when a state refuses to hand over property that a pipeline company wants to seize from it, the company cannot ask a federal court to condemn the property.

This was the second such decision in the last few weeks; on August 21, the federal district court in Maryland reached the same conclusion concerning state property that was being condemned for the Panhandle gas pipeline. (A third such decision was handed down in 2017 by a federal district court in Texas, and no courts have reached a different conclusion.)

These decisions — especially a Circuit court decision such as PennEast— have potentially enormous implications for the frenzied natural gas pipeline rush. If states do not want to allow pipelines to cross state property (which, in PennEast, included both state-owned land as well as state conservation easements on private land), that will effectively put the kibosh on any such pipeline, because states not only own lands and conservation easements, but also the streambed of every navigable waterway within their boundaries. It is difficult to imagine an interstate pipeline that does not cross a navigable waterway, a definition that has been read in many states to include just about anything you can float a kayak on. (And while these decisions only prevent federal courts from hearing condemnation actions, states generally do not allow state courts to condemn state property without specific legislative authorization, which is not an option for PennEast under New Jersey law.)

Recognizing the applicability of the 11thAmendment will also put an end to accusations that States have abused their authority under section 401 of the Clean Water Act in order to stop pipelines that they don’t want; notably, New York’s decision to deny a 401 permit for the Constitution pipeline has become a fixation for the fossil fuel lobby and their Congressional mouthpieces. (401 permits are issued if the proposed activity will comply with various water quality standards.)  If states truly don’t want a pipeline, they can simply refuse to grant easements across state lands, thus insulating their 401 decisions from political criticism.  

PennEast also has another lesson, entirely apart from pipelines and eminent domain.  Amicus (friend of the court) briefs have become something of a plague in federal cases. To quote Jimmy Durante, everyone wants to get into the act, even if what they have to say is either irrelevant or has already been said by the party they are supporting. In my experience many amicus briefs are little more than vanity projects that courts — justifiably—pay little attention to.  There are three circumstances in which courts do pay attention to amicus briefs: the amicus is a prominent person (e.g., a brief from Ben Bernanke or Alan Greenspan will be read), the amicus is represented by a notable lawyer (ditto if Larry Tribe’s or Richard Epstein’s name is on the cover), or the brief actually says something of use to the court.

Not meeting either of the first two criteria, Niskanen amicus briefs necessarily fall into the third category, because we do not submit them unless we have something to add to the legal discussion. The Third Circuit recognized this in PennEast: The smart lawyers who wrote our brief hit upon a refutation of one of PennEast’s central arguments, which the Court cited and discussed in its decision. In the pipeline eminent domain arena, Niskanen has submitted five  amicus briefs, and in four of them — in the Dakota Access, Mountain Valley, and PennEast pipeline cases (in two separate proceedings for the last) — ours were the only amicus briefs supporting the landowners, raising issues and making arguments that the landowners did not. In short, we do not want to waste our time in writing, or the court’s time in reading, pointless verbiage just to say that we submitted an amicus. I encourage my colleagues to take this to heart and note that in two recent pipeline cases federal judges have refused to accept amicus briefs that merely reiterated points made by the party they were supporting. Don’t let that happen to you.