US Supreme Court removes immigration cases from calendar, takes up gas pipeline case
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US Supreme Court removes immigration cases from calendar, takes up gas pipeline case

The US Supreme Court released an order on Wednesday granting the Biden administration’s request to remove oral arguments for challenges on now-defunct Trump administration immigration policies. The Supreme Court’s order separately granted a writ of certiorari in a natural-gas pipeline case.

The removed cases, Mayorkas v. Innovation Law Lab and Biden v. Sierra Club, are both likely to be rendered moot because of President Joe Biden’s announced changes to immigration policy. Sierra Club challenged the constitutionality of the Mexican border wall funding, the construction of which Biden halted on his first day as president. Innovation Law Lab challenged the Migrant Protection Protocols program. Enrollment into the program, widely known as the “remain in Mexico” asylum policy, was recently suspended by the Department of Homeland Security.

The new case, PennEast Pipeline Co. v. New Jersey, comes on appeal from the US Court of Appeals for the Third Circuit. In an effort to build a natural-gas pipeline through Pennsylvania and New Jersey, the PennEast Pipeline Company filed condemnation suits against the state of New Jersey to force it to convey state-owned land for the project. PennEast argues that the National Gas Act (NGA) delegated federal authority to Federal Energy Regulatory Commission (FERC) certificate holders to claim state-owned land through eminent domain and file suit against those states for possession of the land. In response, New Jersey cites its Eleventh Amendment sovereign immunity from suits by private parties.

In an opinion by Circuit Judge Jordan, the Third Circuit panel sided with New Jersey, agreeing that the state’s Eleventh Amendment immunity barred PennEast’s suits against it because the “power of eminent domain” is “separate and distinct” from the “power to hale sovereign States into federal court.” The court reasoned that while the NGA delegated the power of eminent domain to certain companies, “nothing in the text of the NGA suggests that Congress intended the statute” to delegate the federal government’s power to “override a State’s Eleventh Amendment immunity.”

On appeal to the Supreme Court, PennEast argues that the Third Circuit decided the case not by applying “settled principles” or “Congress’ evident intent,” as demonstrated by the NGA’s eminent domain provision, but by “inventing a clear statement rule to avoid a constitutional concern that does not exist.” In so doing, PennEast asserts the court “effectively invalidated an Act of Congress and upset nearly a century of settled industry practice:”

For more than 70 years, §717f(h) of the NGA has been understood by everyone … to delegate to certificate holders the power to exercise federal eminent domain to obtain any property rights needed to construct a FERC-approved interstate pipeline, whether those property rights belong to a private party or to a state. … [The] decision below threatens direct, immediate, and severe consequences for the nation’s energy markets, and injects uncertainty that undoubtedly will chill investments in infrastructure projects all across the country. The NGA has supported the energy needs of this country for nearly a century, but it cannot continue to do so with the effective veto power of a state lurking in every corner.

PennEast’s appeal presents the Supreme Court with the question of whether “the NGA delegates to FERC certificate holders the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.” The justices granted the petition and added an additional question: whether “the Court of Appeals properly exercise[d] jurisdiction” over the case. The case will be argued in April.