Courthouse Steps Decision Webinar: Penneast Pipeline Co. v. New Jersey

Environmental Law & Property Rights Practice Group Teleforum

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On June 29, 2021, the Supreme Court held that the Eleventh Amendment did not bar Penneast Pipeline Co., exercising federal eminent domain authority under the Natural Gas Act, from suing the State of New Jersey to acquire state-owned property to construct a natural gas pipeline. The Supreme Court rejected New Jersey’s arguments that the federal eminent domain power had not been properly delegated to PennEast, and even if the authorization were appropriate, the State’s sovereign immunity precluded this federal court suit. The federal government has always had the supreme power to condemn state property,the Court ruled, and the tradition of delegating this power to build public infrastructure goes back to the days of the nation’s founding. Penneast was represented by former Solicitor General, Paul Clement.

Chief Justice Roberts delivered the opinion of the Court, joined by Justices Breyer, Alito, Sotomayor and Kavanaugh. Justice Gorsuch filed a dissent joined by Justice Thomas.  Justice Barrett filed a dissent joined by Justices Thomas, Kagan, and Gorsuch. 

Featuring: 

  • Paul D. Clement, Partner, Kirkland & Ellis LLP
  • Moderator: Roger J. Marzulla, Partner, Marzulla Law 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's Webinar call. Today, July 7, we discuss the Courthouse Steps Decision in PennEast Pipeline v. New Jersey. My name is Guy DeSanctis, and I'm Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. Today, we are fortunate to have with us Roger J. Marzulla, partner, Marzulla Law.

 

      Throughout the panel, if you have any questions, please submit them through the question-and-answer feature or the chat, so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today.

 

      Paul and Roger, the floor is yours.

 

Roger J. Marzulla:  Well, actually, we've saved the best for my announcement. This is Roger Marzulla, and I have the pleasure of introducing our guest of honor today, Paul Clement, who has the honor, actually, of being the winningest Supreme Court advocate in the most recent term. Paul had four arguments, four cases, and four wins.

 

      We're here today to talk about one of those wins, and that is in the PennEast Pipeline case.

      So, I'm very pleased and honored and humbled to be able to introduce one of the leading Supreme Court lawyers in the United States, a partner at the Kirkland Law Firm and former Solicitor General of the United States, Paul Clement.

 

      Paul, would you like to tell us a little bit about the issues that arose in the PennEast Pipeline case, and then perhaps we can talk about some of the holdings that the Court ruled on in that case.

 

Paul D. Clement:  Sure. I'm happy to, sort of, set the table for us, Roger, and thank you for doing this with me and suggesting -- we did this after the argument, and Roger essentially extorted a promise from me that I would come after the decision came down. And, behind the veil of ignorance, I said, "Absolutely." So I'm kind of delighted that I not only get to come back, but come back having ended up on the winning side of this case, which, as we'll talk about, was a 5-4 decision, so was hardly a foreordained outcome.

 

      In terms of just setting the stage, the question in this case is really, on the one hand, one of pipeline development and the Natural Gas Act, and on the other hand, the question of state sovereign immunity -- and talk about the Eleventh Amendment. And the Eleventh Amendment and its text, figured prominently in some of the opinions, but you also have, kind of, the broader concept of state sovereign immunity. And they're really at loggerheads in this case.

 

      PennEast is a consortium of pipeline companies that put together a pipeline designed to bring natural gas from the kind of resource-rich parts of Central Pennsylvania and bring it through some of the more populous parts of Pennsylvania, across the Delaware River, under the Delaware River, and then through some populated areas of New Jersey where there were many consumers for this, and then, in turn, would eventually hook up into a broader pipeline system and ultimately distribute natural gas to states down-pipeline as well.

 

      So the way that a consortium of companies like PennEast gets approval for a particular pipeline route is to go to FERC and demonstrate a degree of need for the pipeline route and then go through a rather elaborate regulatory process that can take years, often requires the approval of multiple federal agencies, and involves a process where affected landowners, who are affected by the proposed pipeline route, can come in, they can sort of raise protests, suggest the route's not optimal, suggest that the route is optimal, but certain other things get taken into account.

 

      All of that is essentially resolved before FERC and FERC ultimately issues a certificate if the pipeline route is approved. And the pipeline certificate is specific as to the envisioned route for the pipeline. And at that point, under the statute, it's left to the pipeline company to, essentially, exercise the federal government's eminent domain authority by initiating actions in federal district court or state court, where they, essentially, condemn land on the route consistent with the certificate and then provide just compensation to the affected landowners.

 

      And that's the way it's worked for about 70 years under the Act, and for the most part, that hadn't created a lot of objections. But in recent years, a couple of statesfor lack of a better shorthand, let's call them blue statesobjected to some of the pipeline routes on environmental grounds.

 

      The FERC has a process to hear some of those state policy concerns, but having not succeeded in getting FERC to defer or not have the pipeline route approved, what a couple statesmost prominently New Jersey and Maryland in a parallel casestarted to do recently is to raise Eleventh Amendment objections to the actions that were brought by the pipeline companies to condemn their land.

 

      And I'll take a minute to breathe in a second and let Roger, sort of, steer me towards describing the Court's holding here. But just to further set the stage – so, when the pipeline companies would come in, they are trying to exercise the statutory power, and since the route has already been approved and FERC has already said that the route can go over state land, at least, the way I think about these eminent domain proceedings is, their principal function is to provide just compensation to the state, and that's certainly how they operate with respect to each of the private landowners that has land that is condemned for the route.

 

      It's probably also worth recognizing that, unlike with some other exercises of the eminent domain authority, what's being condemned is not the whole property in fee, but is a right-of-way for the pipeline. And so there's some disruption that comes with that, to be sure, but it's not like you, sort of, as a property owner, or the state, lose the fee title to the land.

 

      And one other point that's just important to kind of get on the table, is that the state's property interests, in most of the parcels at issue in this litigation, were not fee interests. This was not like, either Blackacre or Blackacre State Park, owned by the federal -- the state government in fee, these were largely environmental and other easements that the state possessed over certain land that they were asserting an interference with or an inability for the private landowner to use the eminent -- the pipeline company to use the eminent domain authority over the state land.

 

      And then just to finish setting the table, district court hears the State of New Jersey's sovereign immunity objection and rejects it pretty summarily. The issue goes on appeal to the Third Circuit. The Third Circuit, in a unanimous opinion, effectively indicated they thought there was an Eleventh Amendment problem with the lawsuit brought by the private pipeline interests against the state vis-à-vis state property interests, but ultimately ruled that -- on statutory grounds, that the land was -- on statutory grounds, that the pipeline companies didn't have clear enough statutory authority to condemn state land and override state sovereignty interests.

 

      So that's sort of the -- at least painting a picture of the issue as it comes to the Court.

 

Roger J. Marzulla:  Well, Paul, one of the things that struck me about this case is the number of constitutional provisions that were implicated: The Fifth Amendment Taking Clause, the Eleventh Amendment Immunity of the States, the Article VI Supremacy among them, and the fact that, in a sense, this really was something of a seminar in constitutional interpretation.

 

      For most of us who are associated with The Federalist Society and have been involved in these -- some of these kinds of issues over the years, though, perhaps, not this many all at once -- our credo has generally been one of originalismone of textualism. This case involved the power of eminent domain. Now, we usually look to Article I of the Constitution to determine what powers the United States has, but there's no mention of eminent domain. That's an inherent power, the Court has told us.

 

      And with respect to state sovereign immunityagain, apart from the Eleventh Amendmentit is an inherent constitutional notion and one of the holdingsnot to steal your thunder, because I'm going to want you to talk about thisone of the holdings of the Supreme Court decisionone of your stronger argumentswas that the ability of the United States to condemn property owned by a state actually was inherent in the structure of the Constitution itself --  fascinating question that requires delving into the Constitutional Convention and the practice of the states in the very early years.

 

      So, I guess what I think we'd all be interested in hearing about, is how you formulated these principles, these arguments, and what do you say to us textualists who say, " How do we know, really, what the power of eminent domain is all about? How do we know what state sovereign immunity is all about, and how can we decide constitutional issues based not on text, but based on the structural nature of the Constitution itself?"

 

Paul D. Clement:  You know, Roger, those are great, kind of, questions and a great setup. What I would say, sort of, in response is two things. Just to, kind of, reiterate your framing -- obviously, I argued this case and argued it for the side that I argued it for. I'm delighted at the result for my client. And I think the Court legitimately came to the correct conclusion, and -- but that said, I don't mean to overstate the easiness of these issues or the simplicity of these issues for members of The Federalist Society, or anyone else, for that matter.

 

      And I think if you look at the division of the justices in this case, you can kind of see that this is not something where, if you look at this as a, kind of, textually-oriented or originalist-oriented justice, there's an obvious outcome. And if you're more in the living-Constitution school, you know, there's a different outcome.

 

      Ultimately, the majority here included the Chief Justice, Justice Alito, Justice Kavanaugh, and then Justices Breyer and Sotomayor. And the dissenting justices included Justices Barret, Thomas, Gorsuch, and Kagan.

 

      So, you're talking about one of the more, I'd say, both unusual and intriguing lineup of justices that produced any 5-4 decision this term of the Court. And I think that reflects the nature of your question, which is -- the answers to these questions aren't easy and the answers, I don't think, are all provided in the text.

 

      And as dedicated a textualist as Justice Scalia -- long ago, kind of embraced the notion that state sovereign immunity is not co-extensive with the text of the Eleventh Amendment. And the Eleventh Amendment, sort of, involves more of the restoration of an idea about state sovereign immunity and what's essential to state sovereignty than it does, you know, exactly, the metes and bounds of its text.

 

      S, these are all areas where the questions are legitimately difficult. One of the provisions that I think does provide a helpful, textual clue here, is the Fifth Amendment itself, because, although you're absolutely right that the Constitution doesn't mention an eminent domain authority, it does provide a guarantee to property owners that they'll be provided with just compensation or that no taking will take place without the provision of just compensation.

 

      That would be an odd provision to be in the Bill of Rights if there were no eminent domain authority at all in the federal government. And I suppose one could imagine a world where that's only in there to protect against the exercise of eminent domain in the District of Columbia and other places where the federal government has closer to plenary power.

 

      But I think the better view is that the Fifth Amendment itself does reflect the notion that there is an eminent domain authority that Congress possesses perhaps through the Necessary and Proper Clause and other ways of thinking about it. But anyway, I think that's another textual clue. But maybe not to completely answer your question, but to at least, sort of, start to answer the question, I think where the Chief Justice ultimately rested his decision is that there are certain ideas about the prerogatives of the states vis-à-vis the federal government that are just implicit in the Constitution itself and the framing of the Constitution.

 

      And I think this is a fascinating area of constitutional law, because it's not all there in the text. But I think it is really important to understand and it has roots that go back to some really interesting Supreme Court constitutional law cases that people don't often focus on if they don't have occasion to in a particular case.

 

      But this is all related to the Equal Footing Doctrine and what rights a new state has when it comes into the Union. And the Equal Footing Doctrine says that each state comes into the Union in the same -- with the same degree of sovereignty as the original thirteen colonies entered the Union when they became the United States of America under the Constitution. And of course that leads to the question of, "What was that? What powers did they yield to the federal government?”

 

      And I think in answering those questions, the Court has never thought that the text of the Constitution provides all of those answers. And one of the best examples of that, and one of the cases that ends up, kind of, figuring in Chief Justice Roberts's opinion is -- there's a case from the 1890s called United States against Texas, where the Supreme Court held that a state doesn't have sovereign immunity in an original action brought against the state by the United States of America. And so the United States was able to sue Texas -- I think it was over a border dispute. And that was a case where there really hadn't been an action like that by the United States against a state in the Supreme Court's original jurisdiction for the first hundred-plus years of the Union.

 

      But when the Supreme Court confronted that, they held that the states don't have immunity against a suit by the United States, essentially, because they yielded under the Supremacy Clause to a superior sovereign. And, again, that's not in the Constitution itself, so you have to, sort of, tease that out from Framing Era materials about what's the nature of sovereignty, and, suffice it to say, it's all fascinating stuff.

 

      And I think from the perspective of an advocateand I think from a perspective of the justicesthey're really important questions. They're really interesting questions, but they don't admit of super-easy answers, which I think is why you generated, not just a 5-4 decision here, but a 5-4 decision with a fairly intriguing lineup.

 

Roger J. Marzulla:  I think that's exactly right, Paul. And I wonder to what extent the facts of the case helped shape the treatment of the constitutional principles. That is, there was significant discussion about the impossibility of providing public servicesbe they pipelines or roads, or whateverin the absence of the ability to acquire the necessary property rights to construct those facilities. And the Court seemed to be impressed with the fact that, not only has that been a power of the United States from the very early days, but it's absolutely essential to the construction of our modern society and to constructing the infrastructure that we all rely on.

 

      Much of that would be extremely difficult, if not impossible, in the absence of the power that the United States, and thus, the pipeline, claimed in this case. I wonder to what extent, in your view, the case might have come out a little bit differently if the condemnation had been for a purpose that was less infrastructural, if you will, and more limited to a single use -- say a national park or a local community center of some sort that was being constructed by a company under the power of the United States.

 

      Would that have made it a harder case, from your perspective, that something like that could have been built elsewhere? It can still be built, it just couldn't be built on land that was owned by the state.

 

Paul D. Clement:  Yeah. No, I think it's a great question, Roger, and I think you're probably right. And I think the specific way that would, kind of, play out, and the way the Court would think about it, is as follows -- one hard question that New Jersey had to deal with is the question -- and I think Justice Alito asked this question pretty pointedly in oral argument, but was just -- under the existing statute, is there any mechanism to, kind of, get the pipeline through New Jersey? And, you know, the answer was, really, "No."

 

      And New Jersey's answer was, "Well, the federal government could initiate the condemnation action itself." But that was, kind of, its only answer. And that was an imperfect answer because that's not actually authorized by the statute, currently. And so under the existing law, notwithstanding that this has been sort of going on under the Act for seventy years, New Jersey was in this awkward position of having to say -- kind of having to concede that you'd really have to change the law and amend the law before you could really have a pipeline that went through state lands.

 

      And that would be particularly problematic for these infrastructure projects because the state, particularly when you account for these easements, has enough property ownership that's it's really kind of impossible to build a pipeline without going across some land that a state has an interest in.

 

      So with that dynamic, if you think about what makes the infrastructure context a little bit different from the hypothetical national park context -- I mean, ultimately, I think the answer should have been the same. But I think three things make the infrastructure, kind of, dynamicparticularly, kind of, helpful, I thinkhere from the standpoint of my client.

 

      One is, if the federal government were condemning land for some kind of use where they would really be the one that was then operating the park, it would make a little more sense for the federal government itself to be the one that initiated the Condemnation Act, and it would make a little less sense for them to delegate that power, essentially, to a third party.

 

      Whereas in the infrastructure context, the -- it has really been since the Framing that it has occurred to governments, at all levels of government, that it makes a lot of sense to have the party that's going to be responsible for building the infrastructure project and the party who may get some of the revenue streams from the projectwhether that's by charging tolls on the toll bridge or whatever it isto be the one that takes care of the ministerial process of condemning the land and then is the one that furnishes the just compensation directly.

 

      So the arrangement here, the delegation here, does not seem gratuitous and is supported by a lot of history and a lot of common sense, and I think that would be less true of something like a park or an individual community center.

 

      The second difference is that in something more discreet, like a community center or a park, it seems like there -- and again, I don't know that this ultimately should make a doctrinal difference, but atmospherically, it seems a lot easier for the federal government to avoid state land, and a little more, therefore, of an affront to state sovereignty, if the federal government takes the state land.

 

      Whereas with a lot of these infrastructure projects, and particularly given the relative ubiquity of state property interests, it's just not possible to build an interstate pipeline without crossing state lands. And I think members of The Federalist Society -- I always want to look at things from an originalist perspective, and that's right, but sometimes you also have to take into account, when assessing the history and what it teaches us, kind of, some of the intervening developments.

 

      And I think if you look at history, one of the arguments that New Jersey emphasized is that in the early years of the Republic, you didn't have the states -- you did have cases that established that private entities could condemn state land. But back then, most of the states were very welcoming of interstate infrastructure projects because it was absolutely essential to developing the nationwide expansion and developing those states.

 

      And it's only in more recent years that you have, kind of, these environmental concerns that are in the forefront and are causing states to object. And then at the same time, with things like environmental easements, which do not have a long history, you now have the state in a position to object and has, kind of, greater breadth of property interests than they would, at least in some other points in history -- depends when you take a snapshot of that.

 

      Anyway,  the final point I would point to -- and I've already alluded to this, though -- is that the infrastructure projects are really where, kind of, the historical roots were strongest for our argument because you do have -- the nature of the infrastructure changes over the years, but you do have -- going all the way back to the Framing and the creation of the first turnpikes and canals, you do have the strong history of the eminent domain authority being delegated to private parties and having the private infrastructure developers be the one initiating the eminent domain action. And I do think tapping into that history was another thing that made this a helpful context.

 

Roger J. Marzulla:  Yeah. Paul, I think that's -- all of that is absolutely compelling in a historical context and in terms of, if you will, factual precedent. But I wonder if you would focus for a moment on the sort of key principle of a delegation of the power of eminent domain. That is, it is one thing to say the federal government has the powerthe power of eminent domain, the power to regulate interstate commerce, the power to make war, the power to levy taxes.

 

      Under what principle, what concept, does the federal government delegate a powerin this case, eminent domainto a private partyPennEast Pipelineand what are the limits on the ability of the federal government to delegate sovereign governmental powers to private entities?

 

Paul D. Clement:  That's a great question Roger. And it's one of those things where, I think -- again, this structure of this project, and this statute, I think, did help us provide some answers to that kind of question. And I guess what I would answer -- the way I would answer is, certainly, we were not arguing that there are no limits on, sort of, what you can delegate, and the circumstances in which the eminent domain power can be delegated.

 

      But one of the things that we tried to focus on, and I think was one of the anomalies of New Jersey's position, is that in many respects, the real intrusion into state sovereignty in these cases is the ability to really, essentially, condemn the state land at all, or to, in the context of this case, authorize the pipeline to go across the state land.

 

      And if you sort of think about it as -- if there's an affront here and an obvious sovereignty issue, it's whether the federal government can take state land at all. And if there's an intrusion on state sovereignty, it comes when the state land is being taken by the superior sovereign. And under this statutory scheme, all of that happened, essentially, at the hands of federal officers, because it's the FERC administrative agency that approves the pipeline route.

 

      So, if you contrast that with a statute that basically tried to delegate to a private party, not just the ability to, essentially, implement the eminent domain power by initiating the condemnation action and providing just compensation, but actually authorized the private party to pick which lands would be condemned, presumably, if they gave them unfettered discretion to pick the lands to be condemned, that itself might be a delegation problem, even under, sort of, general, nondelegation/delegation principles.

 

      And I think it might be fair in another case like that to argue that when it comes to something as sensitive as picking, like, the route, that either has to be done by the federal government or, at least, it has to be done pursuant to federal government instructions that are very specific and doesn’t give too much discretion to the private party to condemn land.

 

      But the attractive feature of this case, from the perspective of my client's arguments, was here -- that was all done by the federal officials. So at least by my lights, the part of the process that you might most want an accountable federal officer to be responsible for, there was an accountable federal officer responsible for that at FERC. And it really was a little more like this -- the delegation was a more ministerial delegation that, I think -- applying, kind of, most notions of delegability and non-delegation, there wasn't a problem because what was being delegated was very specific and very discreet.

 

Roger J. Marzulla:  Well, and finally, Paul, before we maybe take a few questions -- and I'm going to invite folks to send in their questions in the chat box or express them orally, if that works. But I guess that the one other issue the Court dealt with, and I'd like you to just sort of touch on that, was the argument that -- okay, the United States can delegate this power, even the power to supervene the state's sovereign immunity and acquire state property, but that has to be pretty expressly stated in the statute. And New Jersey argued the NGA simply doesn't contain that clear a delegation of the power of eminent domain.

 

      You prevailed on that. The Court went with you and seemed to say that it was clear enough. So, how clear is clear enough?

 

Paul D. Clement:  Well, it -- no, it's a great question. And I think “clear enough” in this context -- the way the Court answered it, ultimately, is reasonably clear, which is to say they didn't apply the kind of clear statement rule that the Court has applied in contexts where they recognize that the state's sovereignty exists. And what Congress is trying to do is to abrogate a state sovereignty that actually exists, or a state sovereign immunity that actually exists.

 

      And there, “clear” has to be crystal clear to the point of, maybe, requiring a plain statement in the text of the statute itself. And I think what the Court said is, “That's not what's going on here because the principal holding of the case is, there isn't really a state sovereign immunity that's being abrogated here because the states surrendered their immunity from this kind of eminent domain action in the plan of the Convention.”

 

      And so I think what they were looking for then is essentially just, kind of, ordinary clarity. And I think if what you require is ordinary clarity, the statute really does supply that, and it supplies it both with the breadth of its grant of authority, it supplies it by the broader context that you can't really build interstate pipelines without having this authority extend to state property and there's no other mechanism to deal with state property, and then this is also a context where the evolution of the statute provides for a degree of clarity that I think makes pretty clear that state property was included in the authority extended in this context.

 

      Because, on a number of occasions, early versions of the statute didn't provide as much authority vis-à-vis the states, and states were using it to block pipeline routes. And the statute was amended on a couple of occasions to, essentially, remove those state roadblocks. And so the idea that somehow it wasn't clear enough about extending to state property is something that really, kind of, didn't make a lot of sense to the Court in the end if what it was applying was kind of a test of, call it ordinary -- ordinary clarity.

 

Roger J. Marzulla:  Great. Well, Paul, I'd like to see if anybody out in our audience has a question that they'd like to ask. I don't want to monopolize the conversation here.

 

Paul D. Clement:  Yeah. So, I'm happy to -- we've got one question in the text box and I'm happy to take a stab at that. And then we’d welcome other questions to the extent there are some.

 

      But the first question is really one, I think -- and I think I saw an article along these lines, too -- there was an article about this case that tried to, sort of, describe this, kind of, otherwise unusual division of the justices into the camps of, sort of, pragmatists and formalists. And the question is, essentially, does that seem, kind of, right to me.

 

      And I guess what I would say is, I do think there is sometimes that divide on the Court. I think that was sort of how I'd describe, in some respects, the divide. There's often a relatively unusual divide of justices in the Apprendi line of cases, 5-4. And I tended to think about that as -- along the same lines as, kind of -- I sort of thought about it as the more theoretical justices and the more pragmatic justices in that context.

 

      I don't know that that really works here, for a couple of reasons. One is, I do think that some of the justices in the majority here, in other contexts, would be -- are not, kind of, through and through pragmatists and be very theoretical about certain issues. I also think that this -- it's probably just, frankly, too early to tell, kind of, too much about, kind of, what Justice Barrett's approach to jurisprudence is along these same lines -- I mean, this division that's being suggested. She may turn out to be squarely in the legalist, formalist camp and not in the pragmatic camp. But I think, based on less than a full term of decisions, it's a little early to tell that.

 

      The other thing I would say is, I think if Justice Kagan had been in the majority, I think this division of justices would be a little bit, kind of -- would probably have appeared to people a little bit different. And I think it's a little hard to know, kind of, what caused Justice Kagan to be in the dissent. I think of all the votes in this case, I think that's probably the one that is a little bit most surprising to me in terms of the ultimate outcome.

 

      So, I think -- as with most observations about the Court, I think there's some truth to this, but I'm not sure it really accurately captures, kind of, this decision or the -- I'm not sure, at least, I see the nine justices breaking into that 5-4 camp.

 

Roger J. Marzulla:  Great. Do we have any other questions? This is your chance, for those of you out in the audience, to ask questions of one of the nation's leading Supreme Court advocates, and a man who has spent a lot of time up there at the Supreme Court building and studying Supreme Court decisions and making Supreme Court arguments.

 

Paul D. Clement:  Well -- and, Roger, while we wait for any other questions, I'll just offer one, kind of, additional thought about this case. I do think if you look at the Chief Justice's opinion, one of the things that really, kind of, loomed large is this idea that if the federal government didn't have this power, it really would have less sovereign power than the states in their domain and most other sovereigns in their domains.

 

      And one of the things that struck me about this caseand I think I mentioned this in our Teleforum right after the argumentbut New Jersey itself has a provision in its law that allows for the state's eminent domain authority to be delegated. And it delegates that to a variety of public utilities, including pipelines. And in that kind of context, it's sort of like a lot of these sovereign immunity questions. When you're only dealing with one sovereign, you can sort of resolve these questions without getting into the complexity of the dual sovereignty in the federal-state system.

 

      But the fact that New Jersey itself, and almost every other sovereign historically, has found it necessary and proper -- to use the constitutional phrase -- to delegate the eminent domain authority, I think really struck the majority here as anomalous that the constitution would give the executive branch and the federal governmentultimately, the whole federal governmentless of an eminent domain power than any other sovereign.

 

      And so I think the Court made that point explicitly in a few points in its opinion, but I think it, sort of, loomed large throughout that it just -- and I think that's why they framed the decision in terms of the plan of the Convention and what powers were given to the federal government at the Convention because once it's conceded that the federal government has some eminent domain power, it becomes hard to explain why the federal government alone would have an eminent domain power that can't be delegated.

 

Roger J. Marzulla:  Yeah. I was struck by the fact that the Court seemed to tie together those two strands of constitutional doctrine and case law. First, that the federal government does have the authority to condemn state property -- a supremacy notion -- and second of all, that the federal government has the power to delegate its eminent domain power.

 

      So, it follows from those two that the federal government has the power to delegate the eminent domain power to condemn state property. And it does seem that this is a pretty firm holdinga significant precedentthat you have obtained here with respect to the constitutional authority of the United States to delegate to private parties the eminent domain power to accomplish public purposes.

 

      When you put that together with the Kelo case -- we really haven't mentioned public purpose here, but recollecting that some years ago the Supreme Court decided that public purpose was a pretty broad notion and that a -- in that case, a developer of an industrial park could be given the power to condemn private property in order to improve the tax base and improve the neighborhood, so to speak, and bring in a major businessone of the drug companiesthat was a public use, and public use was very broadly defined.

 

      It seems that there would be very few instances in which things that are normally considered public uses or public purposes wouldn't also justify the delegation of the eminent domain power.

 

Paul D. Clement:  No, that's a very fair point, but it does also suggest that -- one interesting by-product of this decision is it could, over time, cause the Court to revisit Kelo and perhaps, sort of, tighten up that aspect of takings law, because,

 

Roger J. Marzulla:  Yes, all they can do is --.

 

Paul D. Clement:  -- obviously, you have a Court here who I think is quite receptive to arguments about private property owners in the takings context.

 

      And if you really sort of think about this from a, kind of, 30-thousand-foot standpoint, it probably makes more sense to develop a doctrine that protects all private property owners, including, incidentally, states, when they have to operate vis-à-vis the federal government as opposed to a doctrine that sort of creates some sort of special immunity for the state as a property owner that doesn't benefit any private property owners at all.

 

      And I think we have one other question that I'll get to in a second, but I just add on that -- one of the things that, kind of, made me really -- in thinking about this case, made me appreciate anew, is that when the state is a property owner -- and this has historical roots that go way back, but when the state is a property owner, in some respects it's acting less as a sovereign than in most of its other capacities.

 

      And, it really -- when a state is a property owner, it's more akin to a private property owner than it is to the state as the true sovereign. And where the state has its real sovereignty is when it acts as a regulator and asserts powers that nobody other than the sovereign in a government has. And that created one of the anomalies of New Jersey's position -- is because they had to concede, based on the Supremacy Clause, that the Congress could completely displace, say, state environmental regulation when it comes to an interstate pipeline.

 

      But at the same time, they were essentially claiming a special state sovereignty as a property owner, even though, historically, that's actually not a terribly, sort of, sovereign function.

 

      So, we've got one follow-up here from Eric Grant, who asks, "Is the pragmatic aspect of the majority's treatment of state sovereign immunity a preview of a new approach to immunity issuestate, tribal or foreignor is it just one time only?"

 

      And I think the answer to that is it's -- I don't want to say that it's a one-time-only and -- there's a certain pejorative with that, that this is the proverbial ticket for one train only and the decision really isn’t that robust. I think this is an important decision about what it means to have a sovereignty, sort of, surrendered in the plan of the immunity -- the plan of the Convention, rather.

 

      And I think that this case will have legs, to the extent there are other cases about state sovereign immunity when it comes to trying to figure out what else, if anything else, was surrendered in the plan of the Convention. And I think this case fits alongside the United States v. Texas as, kind of, that strand of cases, and there may be one or two other cases in that strand. I don't think there will be too many others, but that's the way I think about this case. And I don’t think that it signals some kind of broader pragmatism about immunity issues that will spill over into the tribal immunity context or the federal government's own sovereign immunity context -- I think -- or foreign sovereign immunity.

 

      I'm a little more inclined to think that this is in a different box from those and will not spread over into those other contexts. And I do think that in some of these other contexts, including state sovereign immunity contexts where you don't have this, kind of, plan of the Convention argument, I do think that this will not have a lot of spillover effects into those other areas, but time will tell. It's a great question.

 

Roger J. Marzulla:  Well, Paul, -- this is Roger Marzulla -- it is always a great pleasure to listen to you and to get your learning in the field of constitutional law and to be right on the leading edge of what's happening in the Supreme Court. We very much appreciate your generous grant of your time to share that with us. And with that, I think we can draw to a close this discussion, but I'm going to try to extract from you, at least, a tentative promise that you'll come back and talk to us next year about your next interesting case in the Supreme Court of the United States.

 

Paul D. Clement:  Well, Roger, I want to thank you for inviting me. And like any good lawyer, you -- an additional ask makes sense. I'm a soft touch, so I'm happy to come back. And I want to thank you for all the good work you've done over so many years to vindicate private property rights. So, it's really a pleasure. We've gotten to collaborate on a couple of cases and that’s been a great professional pleasure. And it's a great professional pleasure to get to talk about this case with you. So, thank you.

 

Roger J. Marzulla:  Great. With that, I think we will conclude this seminar.

 

 

Guy DeSanctis:  On behalf of The Federalist Society, I want to thank our experts Paul D. Clement and Roger J. Marzulla for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today.

 

      We are adjourned.

     

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.