John Kramer
John Kramer · April 7, 2021

Arlington, Virginia—Today, the Institute for Justice (IJ) filed an amicus brief in PennEast Pipeline Company, LLC v. New Jersey, a U.S. Supreme Court case about the scope of private companies’ powers to take land through eminent domain to build pipelines under the Natural Gas Act. IJ’s brief urges the Court to reject arguments made by the Solicitor General of the United States that would prevent landowners across the country from defending their basic property rights. The case is set for argument before the High Court on April 28, 2021.

The PennEast case itself has little to do with private property rights—the dispute between the parties is about whether New Jersey, as a state, should be immune from an eminent domain lawsuit in federal court. A ruling for New Jersey would not limit private companies’ longstanding but deeply controversial ability to take private land to build pipelines. But the Solicitor General has urged the Court to avoid deciding the case on the merits and instead adopt a new reading of the Natural Gas Act that would prevent courts from hearing arguments like this at all. Under the Solicitor General’s view, once the federal government approves a pipeline, affected property owners must immediately challenge the legality of that pipeline—and that failing to do so successfully means that a court hearing a later eminent domain case has no jurisdiction to hear any arguments about whether eminent domain is being used lawfully. That understanding of the law has been applied in other context—most famously when a convent of nuns was told it was not allowed to make arguments under the Religious Freedom Restoration Act to fight off condemnation of the nuns’ land—but it has never been adopted by the Supreme Court.

“The government’s argument is basically that federal courts hearing these cases have jurisdiction to take your land away from you but no jurisdiction to decide whether your land is being taken unlawfully,” explained IJ Senior Attorney Robert McNamara, counsel of record on the brief. “But that is simply backwards. If a judge is going to order you to give up your property, that judge absolutely needs to be able to hear arguments about why you should get to keep it.”

IJ’s brief draws on cases from around the country, including cases won by the Institute for Justice itself won, to explain that landowners facing eminent domain can and do persuade courts to let them keep their land when it is threatened by eminent domain. There is nothing in the Natural Gas Act that suggests it gives pipeline companies the power to strip property owners of their right to do exactly the same thing.

“It is not unusual to see the government try to resort to procedural tricks to stop people from fighting the taking of their property,” said IJ Litigation Director Dana Berliner. “But the government now is trying to put even more barriers in front of people whose land is threatened by eminent domain—and doing it in a case where private landowners are not even parties. IJ is standing up for those absent owners and their right to fight to keep what they have worked so hard to own.”