Pipes used in the oil business sit in a yard Vernon Mount Vernon, Ohio. Photo: Spencer Platt/Getty Images
By Ellen M. Gilmer, Bloomberg Law
The U.S. Supreme Court hears arguments Wednesday in a case pitting states’ rights advocates against energy companies.
New Jersey and backers of the $1 billion PennEast natural gas pipeline face off over developers’ effort to seize state land along the project’s route.
It’s the latest in a series of pipeline cases to reach the Supreme Court in the past year, an outgrowth of sweeping litigation surrounding a nationwide expansion of oil and gas infrastructure over the past decade. The justices heard an Atlantic Coast pipeline case a year ago, and fielded a flurry of filings involving Keystone XL last summer.
Kirkland & Ellis LLP’s Paul Clement, a former solicitor general and powerhouse Supreme Court advocate who successfully argued the Atlantic Coast case, represents PennEast. The Biden administration is maintaining Trump-era support for PennEast’s arguments, a decision that disappointed many pipeline opponents.
Some justices might find it challenging to weigh New Jersey’s asserted state property rights against pipeline lawyers’ claims of broad industry impacts in the case, University of Minnesota energy law professor Alexandra Klass said.
“It tees up that issue directly in a way that some of these other cases have not,” she said. “Here is a situation where you have a state who is opposed to this particular pipeline and has actual land, saying a private party can’t use delegated eminent domain authority to take state land.”
Backed by Enbridge Inc., Southern Co., and other companies, PennEast would stretch 116 miles across Pennsylvania and New Jersey. Construction hasn’t started, and PennEast faces other permitting and legal hurdles even if it prevails at the Supreme Court.
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