PennEast Pipeline Co. v. New Jersey

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 2
Pages 482–522
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 29, 2021
REBECCA A. WOMELDORF
reporter of decisions
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482 OCTOBER
TERM, 2020
Syllabus
PENNEAST PIPELINE CO., LLC v. NEW JERSEY et al.
certiorari
to the united states court of appeals for
the third circuit
No. 19–1039. Argued April 28, 2021—Decided June 29, 2021
Congress passed the Natural Gas Act in 1938 to regulate the transporta-
tion and sale of natural gas in interstate commerce. To build an in-
terstate pipeline, a natural gas company must obtain from the Federal
Energy Regulatory Commission a certifcate refecting that such con-
struction “is or will be required by the present or future public conven-
ience and necessity.” 15 U. S. C. § 717f(e). As originally enacted, the
NGA did not provide a mechanism for certifcate holders to secure prop-
erty rights necessary to build pipelines, often leaving certifcate holders
with only an illusory right to build. Congress remedied this defect in
1947 by amending the NGA to authorize certifcate holders to exercise
the federal eminent domain power, thereby ensuring that certifcates of
public convenience and necessity could be given effect. See § 717f(h).
FERC granted petitioner PennEast Pipeline Co. a certifcate of public
convenience and necessity authorizing construction of a 116-mile pipe-
line from Pennsylvania to New Jersey. Several parties, including re-
spondent New Jersey, petitioned for review of FERC's order in the D. C.
Circuit. The D. C. Circuit has held those proceedings in abeyance pend-
ing resolution of this case. PennEast fled various complaints in Fed-
eral District Court in New Jersey seeking to exercise the federal emi-
nent domain power under § 717f(h) to obtain rights-of-way along the
pipeline route approved by FERC. As relevant here, PennEast sought
to condemn parcels of land in which either New Jersey or the New
Jersey Conservation Foundation asserts a property interest. New Jer-
sey moved to dismiss PennEast's complaints on sovereign immunity
grounds. The District Court denied the motion, and it granted Penn-
East's requests for a condemnation order and preliminary injunctive
relief. The Third Circuit vacated the District Court's order insofar as
it awarded PennEast relief with respect to New Jersey's property inter-
ests. The Third Circuit concluded that because § 717f(h) did not clearly
delegate to certifcate holders the Federal Government's ability to sue
nonconsenting States, PennEast was not authorized to condemn New
Jersey's property.
Held: Section 717f(h) authorizes FERC certifcate holders to condemn all
necessary rights-of-way, whether owned by private parties or States.
Pp. 492–509.
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(a) The United States raises a threshold challenge to the Third Cir-
cuit'
s jurisdiction below on the grounds that § 717r(b) grants the court
of appeals reviewing FERC's certifcate order (here, the D. C. Circuit)
“exclusive” jurisdiction to “affrm, modify, or set aside such order.” The
Court rejects this challenge. New Jersey does not seek to modify
FERC's order; it asserts a defense against the condemnation proceed-
ings initiated by PennEast. The Third Circuit's decision that § 717f(h)
does not grant natural gas companies the right to bring condemnation
suits against States did not “modify” or “set aside” FERC's order, which
neither purports to grant PennEast the right to fle a condemnation
suit against States nor addresses whether § 717f(h) grants that right.
Contrary to the argument of the United States, New Jersey's appeal is
not a collateral attack on the FERC order. Pp. 492–493.
(b) The Federal Government has exercised its eminent domain au-
thority since the founding, connecting our country through turnpikes,
bridges, and railroads—and more recently through pipelines, telecom-
munications infrastructure, and electric transmission facilities. The
Court has upheld these exercises of the federal eminent domain power—
whether by the Government or a private corporation, whether through
the upfront taking of property or a condemnation action, and whether
against private property or state-owned land. Section 717f(h) falls
within this established practice. Pp. 493–499.
(1) Governments have long taken property for public use without
the owner's consent. The United States is no different. While the
Constitution and Bill of Rights did not use the term “eminent domain,”
the Takings Clause of the Fifth Amendment (“nor shall private property
be taken for public use, without just compensation”) presupposed the
existence of such a power. Initially, the Federal Government exercised
its eminent domain authority in areas subject to exclusive federal juris-
diction. The Court later confrmed that federal eminent domain
extended to property within a State. Kohl v. United States, 91 U. S.
367. The Court's decision in Kohl—which upheld the power of the
United States to condemn land in Ohio to construct a federal building—
observed that eminent domain was a “means well known when the Con-
stitution was adopted” and that “[t]he powers vested by the Constitution
in the general government demand for their exercise the acquisition of
lands in all the States.” Id., at 371–372. Kohl involved the condemna-
tion of private land, but the Court subsequently made clear that “[t]he
fact that land is owned by a state is no barrier to its condemnation by
the United States.” Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,
313 U. S. 508, 534. Pp. 493–495.
(2) For as long as the eminent domain power has been exercised by
the United States, it has also been delegated to private parties. The
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484 PENNEAST
PIPELINE CO. v. NEW JERSEY
Syllabus
Colonies, the States, and the Federal Government have commonly au-
thor
ized the private condemnation of land for public works. And in the
years following Kohl, the Court confrmed that private delegatees, like
the United States, can exercise the federal eminent domain power
within the States. In Luxton v. North River Bridge Co., 153 U. S. 525,
for example, the Court rejected a landowner's claim that Congress could
not delegate its authority to condemn property necessary to construct
a bridge between New York and New Jersey. Congress had the sover-
eign power to construct bridges for interstate commerce, and the Court
confrmed Congress could choose to do so through a corporation. Id.,
at 530. These powers, the Court noted, could be exercised “with or
without a concurrent act of the State in which the lands lie.” Ibid.
Early cases also refected the understanding that state property was
not immune from the exercise of delegated federal eminent domain
power. See Stockton v. Baltimore & N. Y. R. Co., 32 F. 9 (Bradley, Cir. J.).
The contrary position—that a federal delegatee could not condemn a
State's land without the State's consent—would give rise to the “di-
lemma of requiring the consent of the state” in virtually every infra-
structure project authorized by the Federal Government. Id., at 17.
The Court in Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641,
echoed Stockton's explanation of the superior eminent domain power of
the Federal Government when it rejected a challenge to a private rail-
road company's exercise of the federal eminent domain power against
land owned by the Cherokees. In reaching that result, the Court ac-
knowledged that “the national government, in the execution of its right-
ful authority, could exercise the power of eminent domain in the several
States,” and the Court labeled as “strange” the notion that the Federal
Government “could not exercise the same power in a Territory occupied
by an Indian nation or tribe.” 135 U. S., at 656–657. Pp. 495–497.
(3) Section 717f(h) delegates to certifcate holders the power to con-
demn any necessary rights-of-way, including land in which a State holds
an interest. This delegation of the federal eminent domain authority is
consistent with the Nation's history and this Court's precedents.
FERC's issuance to a company of a certifcate of public convenience and
necessity to build a pipeline carries with it the power—if the company
cannot acquire the necessary rights-of-way by contract at an agreed
compensation—to “acquire the same by the exercise of the right of emi-
nent domain.” § 717f(h). This delegation is categorical; by its terms,
§ 717f(h) delegates to certifcate holders the power to condemn any nec-
essary rights-of-way, including land in which a State holds an interest.
Pp. 497–499.
(c) Respondents contend that sovereign immunity bars condemnation
actions against a nonconsenting State. Alternatively, respondents con-
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485
Syllabus
tend that § 717f(h) does not speak with suffcient clarity to authorize
such
actions. The Court rejects each argument, for reasons stated
below. Pp. 499–508.
(1) “States' immunity from suit is a fundamental aspect of the sov-
ereignty which the States enjoyed before the ratifcation of the Consti-
tution.” Alden v. Maine, 527 U. S. 706, 713. A State may be sued only
in limited circumstances, including where the State expressly consents
or where Congress clearly abrogates the State's immunity under the
Fourteenth Amendment. A State may also be sued if it has implicitly
agreed to suit in the “plan of the Convention,” which is shorthand for
“the structure of the original Constitution itself.” Id., at 728. The
Court has looked to the plan of the Convention to permit actions against
nonconsenting States in the context of bankruptcy proceedings, suits by
other States, and suits by the Federal Government. Pp. 499–500.
(2) Respondents do not dispute that the NGA empowers certifcate
holders to condemn private property, but they contend that the same
certifcate holders have no power to condemn state-owned property
under § 717f(h). It is argued that the NGA cannot authorize such con-
demnation actions under the Court's decision in Seminole Tribe of Fla.
v. Florida, 517 U. S. 44, which generally prohibits Congress from using
its Article I powers to abrogate state sovereign immunity. But con-
gressional abrogation is not the only means of subjecting States to suit.
The States implicitly consented to private condemnation suits when
they ratifed the Constitution, and respondents' arguments to the con-
trary cannot be squared with the Court's precedents.
Respondents do not dispute that the Federal Government enjoys a
power of eminent domain superior to that of the States, or that the
Federal Government can delegate that power to private parties. Re-
spondents instead point to the absence of founding-era evidence of pri-
vate condemnation suits against nonconsenting States to maintain that
States did not consent to such suits when they entered the federal sys-
tem. Respondents would divorce the federal eminent domain power
from the power to bring condemnation actions—and then argue that the
latter cannot be delegated to private parties with respect to state-owned
lands. But the eminent domain power is inextricably intertwined
with condemnation authority. Separating the two would diminish the
eminent domain power of the federal sovereign, which the State may not
do. See Kohl, 91 U. S., at 374. Absent the power to condemn States'
property interests, the only constitutionally permissible way of exercis-
ing the federal eminent domain power would be to take property up
front and require States to sue for compensation later. State sovereign
immunity would not be served by favoring private or Government-
supported invasions of state-owned lands over judicial proceedings.

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486 PENNEAST
PIPELINE CO. v. NEW JERSEY
Syllabus
The Court held in United States v. Texas, 143 U. S. 621, that it “does
no
violence to the inherent nature of sovereignty” for a State to be sued
by “the government established for the common and equal beneft of the
people of all the States.” Id., at 646. In so holding, the Court did not
insist upon examples from the founding era of federal suits against
States. Similar structural considerations support the conclusion that
States consented to the federal eminent domain power, whether that
power is exercised by the Government or its delegatees. The absence
of a perfect historical analogue to the proceedings PennEast initiated
below does not suggest otherwise. Pp. 500–506.
(3) Finally, respondents argue that even if States agreed in the
plan of the Convention to condemnation suits by Federal Government
delegatees, the NGA does not authorize such suits with the clarity re-
quired by the Court's precedents. There is no requirement, however,
that the Federal Government speak with “unmistakable clarity” when
authorizing a private party to exercise its eminent domain power.
Pp. 507–508.
938 F. 3d 96, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Breyer,
Alito, Sotomayor, and Kavanaugh, JJ., joined. Gorsuch, J., fled a
dissenting opinion, in which Thomas, J., joined, post, p. 509. Barrett,
J., fled a dissenting opinion, in which Thomas, Kagan, and Gorsuch, JJ.,
joined, post, p. 512.
Paul D. Clement argued the cause for petitioner. With
him on the briefs were Erin E. Murphy, Kasdin M. Mitchell,
and Michael D. Lieberman.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging vacatur. With
him on the brief were Acting Solicitor General Prelogar,
Acting Assistant Attorney General Williams, Jonathan Y.
Ellis, and Rachel Heron.
Jeremy M. Feigenbaum, State Solicitor of New Jersey, ar-
gued the cause for respondent New Jersey et al. With him
on the brief were Gurbir S. Grewal, Attorney General of
New Jersey, Angela Cai, Deputy State Solicitor, Michael C.
Walters, Assistant Attorney General, and Mark Collier,
Erin M. Hodge, Kathrine M. Hunt, Kristina L. Miles, Dan-
iel Resler, and Jamie M. Zug, Deputy Attorneys General.

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Opinion of the Court
Matthew Littleton, David T. Goldberg, Jennifer Danis, and
E
dward Lloyd fled a brief for respondent New Jersey Con-
servation Foundation.*
Chief Justice Roberts delivered the opinion of the
Court.
Eminent domain is the power of the government to take
property for public use without the consent of the owner. It
can be exercised either by public offcials or by private par-
ties to whom the power has been delegated. And it can be
exercised either through the initiation of legal proceedings
*Briefs of amici curiae urging reversal were fled for the Chamber of
Commerce of the United States of America et al. by Deanne E. Maynard,
James R. Sigel, and Daryl Joseffer; for Columbia Gas Transmission, LLC,
by Catherine E. Stetson and Sean Marotta; for the Energy Equipment
and Infrastructure Alliance by Michael H. McGinley and Steven B. Feir-
son; for the Interstate Natural Gas Association of America et al. by Lela
M. Hollabaugh, Nicholas A. Danella, Sandra Y. Snyder, Paul G. Afonso,
and Michael L. Murray; for the Marcellus Shale Coalition et al. by Terry
R. Bossert and Kevin Jon Moody; for the Pennsylvania Manufacturers'
Association et al. by Charles O. Beckley II; and for the United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO, et al. by Ellen O. Boardman.
Briefs of amici curiae urging affrmance were fled for the State of
Oregon et al. by Ellen F. Rosenblum, Attorney General of Oregon, Benja-
min Gutman, Solicitor General, Paul L. Smith, Deputy Solicitor General,
and Jona J. Maukonen, Philip M. Thoennes, and Inge D. Wells, Assistant
Attorneys General, and by the Attorneys General and other offcials for
their respective jurisdictions as follows: Matthew Rodriquez, Acting At-
torney General of California, William Tong of Connecticut, Kathleen Jen-
nings of Delaware, Clare E. Connors of Hawaii, Kwame Raoul of Illinois,
Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of
Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia James
of New York, Joshua H. Stein of North Carolina, Peter F. Neronha of
Rhode Island, Thomas J. Donovan, Jr., of Vermont, Mark R. Herring of
Virginia, and Robert W. Ferguson of Washington; and for the Council of
State Governments et al. by Vivek V. Tata and Lisa E. Soronen.
Robert J. McNamara fled a brief for the Institute for Justice as ami-
cus curiae.

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488 PENNEAST
PIPELINE CO. v. NEW JERSEY
Opinion of the Court
or simply by taking possession up front, with compensation
to
follow. Since the founding, the United States has used its
eminent domain authority to build a variety of infrastructure
projects. It has done so on its own and through private del-
egatees, and it has relied on legal proceedings and upfront
takings. It has also used its power against both private
property and property owned by the States.
This case involves one of the ways the federal eminent
domain power can be exercised: through legal proceedings
initiated by private delegatees against state-owned property.
Specifcally, we are asked to decide whether the Federal Gov-
ernment can constitutionally confer on pipeline companies
the authority to condemn necessary rights-of-way in which a
State has an interest. We hold that it can. Although non-
consenting States are generally immune from suit, they
surrendered their immunity from the exercise of the federal
eminent domain power when they ratifed the Constitution.
That power carries with it the ability to condemn property
in court. Because the Natural Gas Act delegates the federal
eminent domain power to private parties, those parties
can initiate condemnation proceedings, including against
state-owned property.
I
A
Natural gas has been a part of the Nation's energy supply
since at least the 1820s, when an “enterprising gunsmith”
named William Aaron Hart developed a natural gas well near
Fredonia, New York. D. Waples, The Natural Gas Industry
in Appalachia 12 (2d ed. 2012). Initially, diffculties in trans-
porting natural gas limited its distribution, as the available
pipeline technology did not allow producers to reach the
sprawling American markets. See Tarr, Transforming an
Energy System, in The Governance of Large Technical Sys-
tems 26 (O. Coutard ed. 1999). Over the following century,
however, that technology slowly improved. In 1891, one

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of the frst interstate pipelines—albeit a rudimentary and
i
neffcient one—was built to carry natural gas from central
Indiana to Chicago. And in the 1920s, development began
in earnest on the country's pipeline infrastructure. See id.,
at 27–28; J. Speight, Natural Gas 20–21, 26 (2007).
In 1938 Congress passed the Natural Gas Act, ch. 556, 52
Stat. 821, to regulate the transportation and sale of natural
gas in interstate commerce. Congress vested the Federal
Power Commission (now the Federal Energy Regulatory
Commission) with the authority to administer the NGA, in-
cluding by approving the construction and extension of inter-
state pipelines. The NGA provides that in order to build an
interstate pipeline, a natural gas company must obtain from
FERC a certifcate refecting that such construction “is or
will be required by the present or future public convenience
and necessity.” 15 U. S. C. § 717f(e). The NGA also pro-
vides that, before issuing a certifcate of public convenience
and necessity, FERC “shall set the matter for hearing and
shall give such reasonable notice of the hearing thereon to
all interested persons.” § 717f(c)(1)(B).
As or ig i na l ly enac ted, the NGA did not identi fy a
mechanism for certifcate holders to secure property rights
necessary to build pipelines. Natural gas companies were
instead left to rely on state eminent domain procedures,
which were frequently made unavailable to them. In some
States, the eminent domain power could be exercised only if
the operation of a pipeline would beneft residents. See
S. Rep. No. 429, 80th Cong., 1st Sess., 2 (1947) (collecting
cases). In others, statutory and constitutional provisions
denied state eminent domain power to corporations from
other States. See id., at 2–3. The result was that certif-
cate holders often had only an illusory right to build.
Congress ac ted to remedy th is defec t. In 1947, it
amended the NGA to authorize certifcate holders to exercise
the federal eminent domain power. See ch. 333, 61 Stat. 459.
Under 15 U. S. C. § 717f(h):

490 PENNEAST
PIPELINE CO. v. NEW JERSEY
Opinion of the Court
“When any holder of a certifcate of public convenience
and
necessity cannot acquire by contract, or is unable to
agree with the owner of property to the compensation
to be paid for, the necessary right-of-way to construct,
operate, and maintain a pipe line or pipe lines for the
transportation of natural gas . . . , it may acquire the
same by the exercise of the right of eminent domain in
the district court of the United States for the district in
which such property may be located, or in the State
courts.”
By enabling FERC to vest natural gas companies with the
federal eminent domain power, the 1947 amendment ensured
that certifcates of public convenience and necessity could be
given effect.
B
Petitioner PennEast Pipeline Co. is a joint venture owned
by several energy companies. In 2015, PennEast applied to
FERC for a certifcate of public convenience and necessity
authorizing the construction of a 116-mile pipeline from Luz-
erne County, Pennsylvania, to Mercer County, New Jersey.
FERC published notice of PennEast's application in the
Federal Register, and subsequently received thousands of
comments in writing and at public hearings. FERC then
issued a draft environmental impact statement for the proj-
ect, which yielded thousands of additional comments.
PennEast made a number of route modifcations in response
to the concerns commenters had raised.
In January 2018, FERC granted PennEast a certifcate of
public convenience and necessity. FERC later denied re-
hearing of this decision, and several parties, including re-
spondent New Jersey, petitioned for review in the D. C.
Circuit. The D. C. Circuit has held those proceedings in
abeyance pending resolution of this case.
Weeks after FERC granted its application, PennEast fled
various complaints in Federal District Court in New Jersey.
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PennEast sought to exercise the federal eminent domain
power
under § 717f(h) to obtain rights-of-way along the
pipeline route approved by FERC, and to establish just com-
pensation for affected owners. PennEast also sought pre-
liminary and permanent injunctive relief allowing it to take
immediate possession of each property in advance of any
award of just compensation. As relevant here, PennEast
sought to condemn two parcels in which New Jersey asserts
a possessory interest, and 40 parcels in which the State
claims nonpossessory interests, such as conservation ease-
ments. PennEast also sought to condemn parcels in which
respondent New Jersey Conservation Foundation holds an
interest.
New Jersey moved to dismiss PennEast's complaints on
sovereign immunity grounds. The District Court denied
the motion, holding that New Jersey was not immune from
PennEast's exercise of the Federal Government's eminent
domain power. In re PennEast Pipeline Co., 2018 WL
6584893, *12 (D NJ, Dec. 14, 2018). Having denied New Jer-
sey's motion to dismiss on immunity grounds, the District
Court granted PennEast's requests for a condemnation order
and preliminary injunctive relief. Id., at *21, *26.
The Third Circuit vacated the District Court's order inso-
far as it awarded PennEast relief with respect to New Jer-
sey's property interests, and it remanded for dismissal of any
claims against the State. In re PennEast Pipeline Co., 938
F. 3d 96, 113 (2019). Although the court acknowledged that
the Federal Government can condemn state-owned property,
it reasoned that this power is in fact the product of two
separate powers: the Federal Government's eminent domain
power, on the one hand, and its ability to sue nonconsenting
States, on the other. Id., at 104. While the Federal Gov-
ernment can delegate its eminent domain power to private
parties, the court found “reason to doubt” that it can do the
same with respect to its exemption from state sovereign im-
munity. Id., at 100. After expressing skepticism as to
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492 PENNEAST
PIPELINE CO. v. NEW JERSEY
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whether the Federal Government could ever delegate this
exempti
on, see id., at 105–111, the court determined that it
did not need to “defnitively resolve that question,” because
“nothing in the NGA indicates that Congress intended to do
so,” id., at 111. In reaching this determination, the Third
Circuit relied on this Court's precedents holding that Con-
gress cannot abrogate state sovereign immunity in the ab-
sence of an “ `unmistakably clear' ” statement. Ibid. (quot-
ing Blatchford v. Native Village of Noatak, 501 U. S. 775,
786 (1991)). Concluding that § 717f(h) did not clearly dele-
gate to certifcate holders the Federal Government's ability
to sue nonconsenting States, the court held that PennEast
was not authorized to condemn New Jersey's property. 938
F. 3d, at 111–113.
We granted certiorari to determine whether the NGA au-
thorizes certifcate holders to condemn land in which a State
claims an interest. 592 U. S. ––– (2021).
II
We begin by addressing a jurisdictional issue raised by the
United States. As just noted, the Third Circuit ruled in
New Jersey's favor based on the State's statutory argument
that the NGA did not delegate to certifcate holders the right
to fle condemnation actions against nonconsenting States.
The United States now argues that the Third Circuit lacked
jurisdiction to decide that question under 15 U. S. C.
§ 717r(b), which gives the court of appeals reviewing FERC's
certifcate order (here, the D. C. Circuit) “exclusive” jurisdic-
tion to “affrm, modify, or set aside such order.” According
to the United States, New Jersey's statutory argument, if
accepted, would modify FERC's order because FERC “ex-
pressly stated” in the order that PennEast “would have
authority to acquire the necessary land or property to con-
struct the approved facilities by exercising the right of emi-
nent domain.” Brief for United States as Amicus Curiae
15 (internal quotation marks omitted).
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PennEast and the respondents both argue that the United
St
ates is wrong. We agree. New Jersey does not seek to
modify FERC's order; it asserts a defense against the
condemnation proceedings initiated by PennEast. To deter-
mine whether the District Court correctly rejected New Jer-
sey's defense, the Third Circuit needed to decide whether
§ 717f(h) grants natural gas companies the right to bring con-
demnation suits against States. Its conclusion that § 717f(h)
does not authorize such suits did not “modify” or “set aside”
FERC's order, which neither purports to grant PennEast the
right to fle a condemnation suit against States nor addresses
whether § 717f(h) grants that right. This case is thus unlike
Tacoma v. Taxpayers of Tacoma, 357 U. S. 320 (1958), in
which we held that the Federal Power Act's similarly worded
exclusive-review provision barred a State from arguing that
a licensee could not exercise the rights granted to it by the
license itself. Contrary to the United States' argument, New
Jersey's appeal is not a collateral attack on the FERC order.
III
Turning to New Jersey's sovereign immunity defense, we
begin by discussing the federal eminent domain power.
Since the founding, the Federal Government has exercised
its eminent domain authority through both its own offcers
and private delegatees. And it has used that power to take
property interests held by both individuals and States. Sec-
tion 717f(h) is an unexceptional instance of this established
practice.
A
Governments have long taken property for public use
without the owner's consent. Although the term “eminent
domain” appears to have been coined by Grotius, see 2 De
Jure Belli ac Pacis 807 (1646 ed., F. Kelsey transl. 1925), the
history of the power may stretch back to biblical times, see
Bell, Private Takings, 76 U. Chi. L. Rev. 517, 524–525 (2009).
In England and the early Colonies, a host of statutes author-
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494 PENNEAST
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ized the use of eminent domain for the construction of roads,
br
idges, and river improvements, among other projects.
See Stoebuck, A Genera l Theory of Emi nent Domai n,
47 Wash. L. Rev. 553, 561–562 (1972). Those vested with
the power could either initiate legal proceedings to secure
the right to build, or they could take property up front
and force the owner to seek recovery for any loss of value.
See 1 Nichols on Eminent Domain § 1.22[11–12] (3d ed. 2021);
see also Knick v. Township of Scott, 588 U. S. 180, 186
(2019) (contrasting “direct condemnation” with “inverse
condemnation”).
When the Constitution and Bill of Rights were ratifed,
they did not include the words “eminent domain.” The Tak-
ings Clause of the Fifth Amendment (“nor shall private
property be taken for public use, without just compensa-
tion”) nevertheless recognized the existence of such a power.
Shortly after the founding, the Federal Government began
exercising its eminent domain authority in areas subject to
exclusive federal jurisdiction. See, e.g., Act of Mar. 3, 1809,
2 Stat. 539 (authorizing construction of turnpike road in the
District of Columbia); see also Custiss v. Georgetown &
Alexandria Turnpike Co., 6 Cranch 233 (1810) (suit by one
of Martha Washington's grandsons to quash inquisition into
value of land pursuant to Act).
By the second half of the 19th century, however, this Court
confrmed that federal eminent domain extended to property
within state boundaries as well. In Kohl v. United States,
91 U. S. 367 (1876), we held that the United States could con-
demn land in Ohio to construct a federal building. We rea-
soned that “[t]he powers vested by the Constitution in the
general government demand for their exercise the acquisi-
tion of lands in all the States.” Id., at 371. And we noted
that “[t]he right of eminent domain was one of those means
well known when the Constitution was adopted, and em-
ployed to obtain lands for public uses.” Id., at 372. The
federal eminent domain power, we said, “can neither be en-
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larged nor diminished by a State. Nor can any State pre-
scr
ibe the manner in which it must be exercised.” Id., at
374. And to avoid any doubt, we added that “[t]he consent
of a State can never be a condition precedent to [the] enjoy-
ment” of federal eminent domain. Ibid.
While Kohl involved the condemnation of private land, we
have since explained that federal eminent domain applies to
state property interests as well. In Oklahoma ex rel. Phil-
lips v. Guy F. Atkinson Co., 313 U. S. 508 (1941), we upheld
an Act of Congress authorizing construction of a dam and a
reservoir that would inundate thousands of acres of state-
owned land. There, we made explicit a point that was im-
plicit in Kohl's reasoning: “The fact that land is owned by a
state is no barrier to its condemnation by the United States.”
313 U. S., at 534.
B
For as long as the eminent domain power has been exer-
cised by the United States, it has also been delegated to pri-
vate parties. It was commonplace before and after the
founding for the Colonies and then the States to authorize
the private condemnation of land for a variety of public
works. See Bell, 76 U. Chi. L. Rev., at 545; see generally,
e. g., Hart, The Maryland Mill Act, 1669–1766, 39 Am. J.
Legal Hist. 1 (1995). The Federal Government was no dif-
ferent. As early as 1809, Congress authorized private par-
ties to exercise the eminent domain power—including
through the initiation of direct condemnation proceedings—
within areas subject to federal jurisdiction. See supra, at
494; see also Act of Mar. 2, 1831, 4 Stat. 477.
In the years following Kohl, the Court confrmed that pri-
vate delegatees can exercise the federal eminent domain
power within the States as well. Our decision in Luxton v.
North River Bridge Co., 153 U. S. 525 (1894), is clear on this
point. Congress authorized a corporation to build a bridge
between New York and New Jersey, and to condemn prop-
erty as necessary along the way. Id., at 525–528 (statement
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of the case); see Act of July 11, 1890, ch. 669, 26 Stat. 268.
Luxton—who
owned land in Hoboken against which the
corporation had brought condemnation proceedings—ob-
jected on the ground that Congress had unconstitutionally
delegated its eminent domain power to the corporation. 153
U. S., at 527–528 (statement of the case). We rejected Lux-
ton's challenge, explaining that Congress “may, at its discre-
tion, use its sovereign powers, directly or through a corpo-
ration created for that object, to construct bridges for
the accommodation of interstate commerce.” Id., at 530.
These powers, we noted, could be exercised “with or without
a concurrent act of the State in which the lands lie.” Ibid.
State property was not immune from the exercise of dele-
gated eminent domain power. In fact, this is not the frst
time New Jersey has tried to thwart such a delegation. In
Stockton v. Baltimore & N. Y. R. Co., 32 F. 9 (CC NJ 1887),
Justice Bradley, riding circuit, considered a challenge by
New Jersey to an Act of Congress authorizing a New York
corporation to build a bridge on state-owned land. Id., at
9–11; see Act of June 16, 1886, ch. 417, 24 Stat. 78. The
Secretary of War had approved the plans for the bridge, as
required by the Act, and the corporation had begun prepar-
ing for construction. 32 F., at 11. New Jersey sought an
injunction, arguing among other things that an out-of-state
corporation could not operate within its borders, and that
the corporation could not take its land without its consent.
Id., at 13, 17. Justice Bradley dismissed these arguments,
reasoning that “if congress, in the execution of its powers,
chooses to employ the intervention of a proper corporation,
whether of the state, or out of the state, we see no reason
why it should not do so.” Id., at 14. Justice Bradley also
presciently noted that New Jersey's position, if accepted,
would give rise to the “dilemma of requiring the consent of
the state in almost every case of an interstate line of
communication by railroad, for hardly a case can arise in
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which some property belonging to a state will not be
crossed.
” Id., at 17.
Just a few years after Stockton, Justice Bradley's views
were adopted by the full Court. In Cherokee Nation v.
Southern Kansas R. Co., 135 U. S. 641 (1890), the Cherokees
argued that a private railroad company could not exercise
the federal eminent domain power pursuant to an Act of Con-
gress. Id., at 655–656. The Act authorized the company to
condemn land, including land owned by the Cherokees,
through a set of procedures for determining just compensa-
tion. See Act of July 4, 1884, ch. 179, 23 Stat. 73. This
Court concluded that the Cherokees' challenge was merit-
less. We quoted at length from Stockton's discussion of
the Federal Government's superior eminent domain power
within the States. See 135 U. S., at 656 (quoting 32 F., at
19). And although Stockton involved state-owned land,
whereas Cherokee Nation involved property owned by an
Indian Tribe, the Court said that “[i]t would be very strange
if the national government, in the execution of its rightful
authority, could exercise the power of eminent domain in the
several States, and could not exercise the same power in a
Territory occupied by an Indian nation or tribe.” 135 U. S.,
at 656–657. It made no difference, moreover, that the Cher-
okees' property was condemned by a private delegatee, as
the delegatee was “none the less a ft instrumentality to ac-
complish the public objects contemplated by the act.” Id.,
at 657.
C
The cases above paint a clear picture: Since its inception,
the Federal Government has wielded the power of eminent
domain, and it has delegated that power to private parties.
We have observed and approved of that practice. The emi-
nent domain power may be exercised—whether by the
Government or its delegatees—within state boundaries, in-
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498 PENNEAST
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general matter, that “the United States may take property
pursuant
to its power of eminent domain in one of two ways:
it can enter into physical possession of property without au-
thority of a court order; or it can institute condemnation pro-
ceedings under various Acts of Congress providing authority
for such takings.” United States v. Dow, 357 U. S. 17, 21
(1958). The same is true for private delegatees. Luxton,
for example, arose out of a condemnation proceeding initi-
ated by a corporation, 153 U. S., at 525–528 (statement of the
case), whereas Stockton was a suit brought by the State
after preparations for construction had already begun, 32 F.,
at 11.
Section 717f(h) follows this path. As described above, a
natural gas company must obtain a certifcate of public con-
venience and necessity from FERC in order to build a
pipeline. Once the certifcate is obtained, if the company
“cannot acquire by contract, or is unable to agree with the
owner of property to the compensation to be paid for, the
necessary right-of-way” to build the pipeline, then the com-
pany “may acquire the same by the exercise of the right of
eminent domain.” § 717f(h). This delegation is categorical.
No one disputes that § 717f(h) was passed specifcally to solve
the problem of States impeding interstate pipeline develop-
ment by withholding access to their own eminent domain
procedures. See S. Rep. No. 429, at 2–4. And it was under-
stood both at the time the provision was enacted and over
the following decades that States' property interests would
be subject to condemnation. See, e. g., Hearings on S. 734
et al. before the Subcommittee of the Senate Committee on
Interstate and Foreign Commerce, 80th Cong., 1st Sess., 105
(1947) (opponents of the bill that would become § 717f(h) ob-
jecting on the ground that it would “permit[ ] the taking of
State-owned lands used for State purposes by a private com-
pany”); Tenneco Atlantic Pipeline Co., 1 FERC ¶63,025,
p. 65,203 (1977) (“the eminent domain grant to persons hold-
ing [certifcates of public convenience and necessity] applies
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equally to private and state lands”). By its terms, § 717f(h)
delegates
to certifcate holders the power to condemn any
necessary rights-of-way, including land in which a State
holds an interest.
IV
The respondents and the principal dissent do not dispute
that the NGA empowers certifcate holders to condemn pri-
vate property. They argue instead that sovereign immunity
bars condemnation actions against nonconsenting States.
And even if such actions are constitutionally permissible, the
respondents (but not the dissent) contend that § 717f(h) does
not speak with suffcient clarity to authorize them. We ad-
dress each of these arguments in turn.
A
“States' immunity from suit is a fundamental aspect of the
sovereignty which the States enjoyed before the ratifcation
of the Constitution.” Alden v. Maine, 527 U. S. 706, 713
(1999). When “the States entered the federal system,” they
did so “with their sovereignty intact.” Blatchford, 501
U. S., at 779. Although the Court initially held that States
could be subject to suit by citizens of other States, see Chis-
holm v. Georgia, 2 Dall. 419 (1793), the ratifcation of
the Eleventh Amendment soon corrected this error. That
Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Sub-
jects of any Foreign State.” Our decision in Hans v. Louisi-
ana, 134 U. S. 1 (1890), clarifed that States retain their
immunity from suit regardless of the citizenship of the plain-
tiff. Since Hans, “we have understood the Eleventh
Amendment to stand not so much for what it says, but for
the presupposition of our constitutional structure which it
confrms.” Blatchford, 501 U. S., at 779.
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Under our precedents, a State may be subject to suit
only
in limited circumstances. A State may of course con-
sent to suit, although such consent must be “unequivocally
expressed.” Sossamon v. Texas, 563 U. S. 277, 284 (2011)
(internal quotation marks omitted). Congress may also ab-
rogate state sovereign immunity under the Fourteenth
Amendment, Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976),
again assuming it does so with the requisite clarity, Nevada
Dept. of Human Resources v. Hibbs, 538 U. S. 721, 726
(2003). And a State may be sued if it has agreed to suit in
the “plan of the Convention,” which is shorthand for “the
structure of the original Constitution itself.” Alden, 527
U. S., at 728; see The Federalist No. 81, pp. 548–549 (J. Cooke
ed. 1961) (A. Hamilton). The “plan of the Convention” in-
cludes certain waivers of sovereign immunity to which all
States implicitly consented at the founding. See Alden, 527
U. S., at 755–756. We have recognized such waivers in the
context of bankruptcy proceedings, Central Va. Community
College v. Katz, 546 U. S. 356, 379 (2006); see Allen v. Cooper,
589 U. S. 248, 258–259 (2020), suits by other States, South
Dakota v. North Carolina, 192 U. S. 286, 318 (1904), and suits
by the Federal Government, United States v. Texas, 143 U. S.
621, 646 (1892).
B
The respondents and the dissent argue that private parties
cannot condemn state-owned property under § 717f(h) be-
cause there is no applicable exception to sovereign immunity.
In the dissent's view, PennEast's suit is barred because
§ 717f(h) is just another “exercise of Congress' power to reg-
ulate interstate commerce,” and “Congress cannot authorize
private suits against a nonconsenting State pursuant to its
Commerce Clause power.” Post, at 515 (opinion of Bar-
rett, J.); see also Brief for Respondent NJCF 22–24. The
dissent also contends that States did not implicitly consent to
private condemnation suits when they ratifed the Constitu-
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tion. See post, at 515–518; see also Brief for Respondent
NJCF
38–44; Brief for Respondent New Jersey et al. 13–22.
Beginning with the argument that Congress cannot sub-
ject States to suit pursuant to its commerce power, it is
undoubtedly true under our precedents that—with the ex-
ception of the Bankruptcy Clause, see Katz, 546 U. S., at
379—“Article I cannot justify haling a State into federal
court,” Allen, 589 U. S., at 257. In Seminole Tribe of Fla.
v. Florida, 517 U. S. 44 (1996), we held that state sovereign
immunity “restricts the judicial power under Article III, and
Article I cannot be used to circumvent the constitutional lim-
itations placed upon federal jurisdiction.” Id., at 72–73.
Seminole Tribe concluded that States' inherent immunity
from suit would be “eviscerated” if Congress were allowed
to abrogate States' immunity pursuant to its Article I pow-
ers. Id., at 64.
But congressional abrogation is not the only means of sub-
jecting States to suit. As noted above, States can also be
sued if they have consented to suit in the plan of the Conven-
tion. And where the States “agreed in the plan of the Con-
vention not to assert any sovereign immunity defense,” “no
congressional abrogation [is] needed.” Allen, 589 U. S., at
258–259.
As the cases discussed in Part III show, the States con-
sented in the plan of the Convention to the exercise of
federal eminent domain power, including in condemnation
proceedings brought by private delegatees. The plan of the
Convention refects the “fundamental postulates implicit in
the constitutional design.” Alden, 527 U. S., at 729. And
we have said regarding the exercise of federal eminent do-
main within the States that one “postulate of the Constitu-
tion [is] that the government of the United States is invested
with full and complete power to execute and carry out its
purposes.” Cherokee Nation, 135 U. S., at 656 (quoting
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502 PENNEAST
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Put another way, when the States entered the federal sys-
tem,
they renounced their right to the “highest dominion in
the lands comprised within their limits.” 135 U. S., at 656
(quoting 32 F., at 19). The plan of the Convention contem-
plated that States' eminent domain power would yield to that
of the Federal Government “so far as is necessary to the
enjoyment of the powers conferred upon it by the Constitu-
tion.” Kohl, 91 U. S., at 372. As we explained in Cherokee
Nation (again quoting Justice Bradley in Stockton), “[i]f it is
necessary that the United States government should have
an eminent domain still higher than that of the State, in
order that it may fully carry out the objects and purposes of
the Constitution, then it has it.” 135 U. S., at 656 (quoting
32 F., at 19). The Court left no doubt about the importance
of the proposition: “This is not a matter of words, but of
things.” 135 U. S., at 656 (quoting 32 F., at 19). And as we
have emphasized in cases involving delegations of the federal
eminent domain power, Congress “may, at its discretion,
use its sovereign powers, directly or through a corporation
created for that object.” Luxton, 153 U. S., at 530. Penn-
East's condemnation action to give effect to the federal emi-
nent domain power falls comfortably within the class of suits
to which States consented under the plan of the Convention.
The respondents and the dissent do not dispute that the
Federal Government enjoys a power of eminent domain su-
perior to that of the States. Nor do they dispute that the
Federal Government can delegate that power to private par-
ties. They instead assert that the only “question is whether
Congress can authorize a private party to bring a condemna-
tion suit against a State.” Post, at 516–517; see Brief for
Respondent NCJF 40; Brief for Respondent New Jersey
et al. 15. And they argue that because there is no founding-
era evidence of such suits, States did not consent to them
when they entered the federal system. See post, at 516–
518; Brief for Respondent NCJF 39–42; Brief for Respond-
ent New Jersey et al. 13–16.
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The faw in this reasoning is that it attempts to divorce
the
eminent domain power from the power to bring condem-
nation actions—and then argue that the latter, so carved out,
cannot be delegated to private parties with respect to state-
owned lands. But the eminent domain power is inextricably
intertwined with the ability to condemn. We have even at
times equated the eminent domain power with the power
to bring condemnation proceedings. See Agins v. City of
Tiburon, 447 U. S. 255, 258, n. 2 (1980), abrogated on other
grounds by Lingle v. Chevron U. S. A. Inc., 544 U. S. 528,
532 (2005). Separating the eminent domain power from the
power to condemn—when exercised by a delegatee of the
Federal Government—would violate the basic principle that
a State may not diminish the eminent domain authority of
the federal sovereign. See Kohl, 91 U. S., at 374 (“If the
United States have the power, it must be complete in itself.
It can neither be enlarged nor diminished by a State.”).
If private parties authorized by the Federal Government
were unable to condemn States' property interests, then that
would leave delegatees with only one constitutionally per-
missible way of exercising the federal eminent domain
power: Take property now and require States to sue for
compensation later.* It is diffcult to see how such an ar-
rangement would vindicate the principles underlying state
sovereign immunity. Whether the purpose of that doctrine
is to “shield[ ] state treasuries” or “accord the States the re-
spect owed them as joint sovereigns,” Federal Maritime
Comm'n v. South Carolina Ports Authority, 535 U. S. 743,
*In addition, all agree that Congress could authorize FERC itself to
condemn the exact same property interests, pursuant to the exact same
certifcate of public convenience and necessity, and then transfer those
interests to PennEast following a legal proceeding in which the Govern-
ment would presumably act in concert with PennEast. See post, at 518
(opinion of Barrett, J.); Brief for Petitioner 40; Brief for Respondent New
Jersey et al. 43–46. This further highlights the counterintuitive nature of
the constitutional scheme envisioned by the respondents and the dissent.
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765 (2002) (internal quotation marks omitted), it would
hardly
be served by favoring private or Government sup-
por ted i nvasi ons of st ate-owned lands over judicia l
proceedings.
Perhaps sensing the incongruity of such a result, New
Jersey has taken the extreme stance that there is no consti-
tutional mechanism for Federal Government delegatees to
exercise the eminent domain power against the States. See
Tr. of Oral Arg. 86. This position is untenable. “[J]ust as
permission to harvest the wheat on one's land implies per-
mission to enter on the land for that purpose,” A. Scalia &
B. Garner, Reading Law 192 (2012), so too does authorization
to take property interests imply a means through which
those interests can be peaceably transferred. An eminent
domain power that is incapable of being exercised amounts
to no eminent domain power at all. And that is contrary to
the plan of the Convention for the reasons discussed in Kohl,
Stockton, Cherokee Nation, and Luxton.
The dissent, for its part, declines to say whether Congress
could authorize a certifcate holder to take possession of
state property through upfront entry. See post, at 519, and
n. 3. The dissent gestures at other judicial and administra-
tive procedures that delegatees might be able to use to take
state property. See post, at 519, n. 3. But such procedures
would almost certainly meet the same fate as traditional con-
demnation actions under the dissent's analysis. See Federal
Maritime Comm'n v. South Carolina Ports Authority, 535
U. S. 743, 760–761 (2002).
Furthermore, the respondents and the dissent prove too
much by emphasizing the historical absence of private con-
demnation suits against state-owned lands. As a prelimi-
nary matter, they appear to cast doubt on the provenance
of the Federal Government's ability to exercise its eminent
domain power within the States. See post, at 517; Brief for
Respondent NCJF 40–42; Brief for Respondent New Jersey
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et al. 16–18. But we resolved in Kohl and its progeny that
the
Federal Government has such an ability—including
against state-owned property—and that the exercise of the
federal eminent domain power was a means that was “known
and appropriate” at the time of the founding. 91 U. S., at
372. We made very clear that this conclusion was unaf-
fected by the fact that the federal eminent domain power had
“not heretofore been exercised adversely” within the States,
because “the non-user of a power does not disprove its exist-
ence.” Id., at 373.
The respondents and the dissent recognize, moreover, that
States consented in the plan of the Convention to suits by
the Federal Government, even though that proposition was
not established until 1892 in United States v. Texas. See
post, at 517–518; Brief for Respondent NCJF 37; Brief for
Respondent New Jersey et al. 20–21; see also Principality
of Monaco v. Mississippi, 292 U. S. 313, 329 (1934); Blatch-
ford, 501 U. S., at 781–782. The Court in Texas—which was
decided even more recently than Kohl, Stockton, and Chero-
kee Nation—did not insist upon examples from the founding
era of federal suits against States. The Court instead rea-
soned as a structural matter that such suits were authorized
because it “does no violence to the inherent nature of sover-
eignty” for a State to be sued by “the government estab-
lished for the common and equal beneft of the people of all
the States.” 143 U. S., at 646. The structural considera-
tions discussed above likewise show that States consented to
the federal eminent domain power, whether that power is
exercised by the Government or its delegatees. And that is
true even in the absence of a perfect historical analogue to
the proceedings PennEast initiated below.
The dissent argues that the Court in Texas relied not only
on “constitutional structure,” but also on “textual cues.”
Post, at 518. But the only relevant constitutional text in
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506 PENNEAST
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plain States' implicit consent in the plan of the Convention
to
suits by the Federal Government. If it could, then the ex-
tension of the judicial power to controversies “between a
State and Citizens of another State,” Art. III, § 2, cl. 1, would
suggest that Chisholm v. Georgia correctly held that noncon-
senting States could be subject to private suit. And the ex-
istence of federal jurisdiction over controversies “between a
State . . . and foreign States,” Art. III, § 2, cl. 1, would sug-
gest that States consented in the plan of the Convention to
suit by other nations, notwithstanding our holding to the con-
trary in Principality of Monaco v. Mississippi. A grant of
judicial power does not imply an abrogation of sovereign im-
munity. Texas rested on “the consent of the State” in the con-
stitutional plan, as does our decision today. 143 U. S., at 646.
As a fnal point, the other dissent offers a different the-
ory—that even if the States consented in the plan of the Con-
vention to the proceedings below, the Eleventh Amendment
nonetheless divests federal courts of subject-matter jurisdic-
tion over a suit fled against a State by a diverse plaintiff.
See post, at 510–512 (opinion of Gorsuch, J.). But under
our precedents that no party asks us to reconsider here, we
have understood the Eleventh Amendment to confer “a per-
sonal privilege which [a State] may waive at pleasure.”
Clark v. Barnard, 108 U. S. 436, 447 (1883); see, e. g., Lapides
v. Board of Regents of Univ. System of Ga., 535 U. S. 613,
618–619 (2002); Gunter v. Atlantic Coast Line R. Co., 200
U. S. 273, 284 (1906). When “a State waives its immunity
and consents to suit in federal court, the Eleventh Amendment
does not bar the action.” Atascadero State Hospital v. Scan-
lon, 473 U. S. 234, 238 (1985). Such consent may, as here, be
“ `inherent in the constitutional plan.' ” McKesson Corp. v.
Division of Alcoholic Beverages and Tobacco, Fla. Dept. of
Business Regulation, 496 U. S. 18, 30 (1990) (quoting Princi-
pality of Monaco, 292 U. S., at 329); see, e. g., Katz, 546 U. S.,
at 377–378.
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C
W
e conclude by addressing the respondents' argument
(which the dissent does not join) that even if States agreed in
the plan of the Convention to condemnation suits by Federal
Government delegatees, the NGA does not authorize such
suits with the requisite clarity. The Third Circuit adopted
this position below, concluding that § 717f(h) did not use the
“unmistakably clear” language necessary to delegate the
Federal Government's ability to sue nonconsenting States.
938 F. 3d, at 111 (quoting Blatchford, 501 U. S., at 786); 938
F. 3d, at 111 (“If Congress had intended to delegate the fed-
eral government's exemption from sovereign immunity, it
would certainly have spoken much more clearly.”). The re-
spondents renew their contention before this Court. See
Brief for Respondent NCJF 24–31; Brief for Respondent
New Jersey et al. 31–39. They note that we have required
“unequivocal textual evidence” when determining whether a
State has expressly consented to suit, or when evaluating
whether Congress has validly abrogated state sovereign im-
munity under the Fourteenth Amendment. Id., at 32 (citing
Sossamon, 563 U. S., at 291; Hibbs, 538 U. S., at 726). And
they argue that this requirement should apply with equal
force in the context of private condemnation actions against
nonconsenting States.
The respondents are certainly correct that a clear state-
ment is required to subject States to suit in the waiver and
abrogation contexts. But they have again misconstrued the
issue in this case as whether the United States can delegate
its ability to sue States. The issue is instead whether the
United States can delegate its eminent domain power to pri-
vate parties. Regardless whether the Federal Government
must speak with unmistakable clarity when delegating its
freestanding exemption from state sovereign immunity (as-
suming such a delegation is even permissible, see Blatchford,
501 U. S., at 785), there is no similar requirement when the
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Federal Government authorizes a private party to exercise
its
eminent domain power. The respondents do not dispute
that the federal eminent domain power can be delegated, or
that § 717f(h) speaks with suffcient clarity to delegate the
power to condemn privately owned land. They argue only
that § 717f(h) fails to delegate the power to condemn States'
property interests. But the federal eminent domain power
is “complete in itself,” Kohl, 91 U. S., at 374, and the States
consented to the exercise of that power—in its entirety—in
the plan of the Convention. The States thus have no immu-
nity left to waive or abrogate when it comes to condemnation
suits by the Federal Government and its delegatees.
V
When the Framers met in Philadelphia in the summer of
1787, they sought to create a cohesive national sovereign in
response to the failings of the Articles of Confederation.
Over the course of the Nation's history, the Federal Govern-
ment and its delegatees have exercised the eminent domain
power to give effect to that vision, connecting our country
through turnpikes, bridges, and railroads—and more re-
cently pipelines, telecommunications infrastructure, and
electric transmission facilities. And we have repeatedly up-
held these exercises of the federal eminent domain power—
whether by the Gover nment or a pr ivate cor porati on,
whether through an upfront taking or a direct condemnation
proceeding, and whether against private property or state-
owned land.
The NGA fts well within this tradition. From humble
beginnings in central Indiana, the Nation's interstate pipe-
line system has grown to span hundreds of thousands of
miles. This development was made possible by the enact-
ment of § 717f(h) in 1947. By its terms, § 717f(h) authorizes
FERC certifcate holders to condemn all necessary rights-of-
way, whether owned by private parties or States. Such
condemnation actions do not offend state sovereignty, be-
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Gorsuch, J., dissenting
cause the States consented at the founding to the exercise of
the
federal eminent domain power, whether by public
offcials or private delegatees. Because the Third Circuit
reached a contrary conclusion, we reverse the judgment
below and remand the case for further proceedings consist-
ent with this opinion.
It is so ordered.
Justice Gorsuch, with whom Justice Thomas joins,
dissenting.
I join Justice Barrett's dissenting opinion in full, which
ably explains why this case implicates New Jersey's struc-
tural immunity and how New Jersey never waived that
immunity in the summer months of 1787. I write only to
address one recurring source of confusion in this area and
which the Court does not address. In the same breath, the
district court said an Eleventh Amendment objection “is a
challenge to a district court's subject matter jurisdiction”
and yet “it does not implicate federal subject matter jurisdic-
tion.” App. to Pet. for Cert. 64–65. Both statements can-
not be true. This Court, it seems, has contributed to the
confusion. It has “sometimes referred to the States' immu-
nity from suit as `Eleventh Amendment immunity.' ” Alden
v. Maine, 527 U. S. 706, 713 (1999); see also, e. g., ante, at 506.
Though it might be a “convenient shorthand,” the phrase is
“a misnomer.” Alden, 527 U. S., at 713. States have two
distinct federal-law immunities from suit.
1
1
States may also have state-law immunity from suit in a state forum.
That immunity derives from a State's “sole control” of “its own courts.”
Alden, 527 U. S., at 740, 749. A State is free to develop its own justiciabil-
ity rules governing state tribunals. See Missouri v. Lewis, 101 U. S. 22,
30 (1880); ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989). That is why
this Court has found that state-law immunity provides an adequate and
independent state ground for affrming a state-court judgment. E. g.,
Georgia R. & Banking Co. v. Musgrove, 335 U. S. 900 (1949) (per curiam);
Palmer v. Ohio, 248 U. S. 32, 34 (1918). Because PennEast sued in federal
court, state-law immunity is not implicated here.
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The frst—“structural immunity”—derives from the struc-
ture
of the Constitution. See Franchise Tax Bd. of Cal. v.
Hyatt, 587 U. S. 230, 247–248 (2019). Because structural im-
munity is a constitutional entitlement of a sovereign State,
it applies in both federal tribunals, Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 51–52 (1996), and in state tribunals,
Alden, 527 U. S., at 712. And it applies regardless of
whether the plaintiff is a citizen of the same State, Allen v.
Cooper, 589 U. S. 248, 252 (2020), a citizen of a different
State, or a non-citizen—like a foreign nation, Principality
of Monaco v. Mississippi, 292 U. S. 313, 330 (1934), or an
Indian tribe, Blatchford v. Native Village of Noatak, 501
U. S. 775, 781 (1991). Structural immunity sounds in per-
sonal jurisdiction, so the sovereign can waive that immunity
by “consent” if it wishes. Hyatt, 587 U. S., at 238–239; see
Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 394
(1998) (Kennedy, J., concurring).
The second—what is properly termed “Eleventh Amend-
ment immunity”—derives from the text of the Eleventh
Amendment. In light of its swift adoption in response to
Chisholm v. Georgia, 2 Dall. 419 (1793), this Court has read
the Eleventh Amendment as pointing to the structural prin-
ciple just discussed. See Allen, 589 U. S., at 254. But the
Eleventh Amendment can do two things at once. See Fed-
eral Maritime Comm'n v. South Carolina Ports Authority,
535 U. S. 743, 753 (2002). In addition to pointing us back to
the States' structural immunity, it also provides an ironclad
rule for a particular category of diversity suits:
“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U. S. Const., Amdt. 11.
This text “means what it says. It eliminates federal judicial
power over one set of cases: suits fled against states, in law
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511
Gorsuch, J., dissenting
or equity, by diverse plaintiffs.” Baude & Sachs, The Mis-
understood
Eleventh Amendment, 169 U. Pa. L. Rev. 609,
612 (2021).
The Eleventh Amendment sometimes does less than struc-
tural immunity: It applies only in federal court (“the Judicial
power of the United States”). And it applies only to diver-
sity suits (“by Citizens of another State”). But sometimes
the Amendment does more: It imposes an Article III subject-
matter jurisdiction barrier (“The judicial Power . . . shall not
be construed to extend”), not a mere privilege of personal
jurisdiction. And it admits of no waivers, abrogations, or
exceptions (“to any suit in law or equity”).
This case appears to present “the rare scenario” that
comes within the Eleventh Amendment's text. Brief for
Respondents State of New Jersey et al. 12. Because Pen-
nEast sued New Jersey in federal court, this suit implicates
“the Judicial power of the United States.” See 28 U. S. C.
§§ 132, 451. This condemnation suit, by any stretch, is “[a]
suit in law or equity.” See Kohl v. United States, 91 U. S.
367, 376 (1876) (“a proceeding to take land” and “determin[e]
the compensation to be made” is “a suit at common law”);
Boom Co. v. Patterson, 98 U. S. 403, 406–407 (1879) (same).
PennEast “commenced” this suit “against” New Jersey. It
named the State in its complaint as a defendant as required
by the Civil Rules. Fed. Rule Civ. Proc. 71.1(c)(1). And it
asked the court for an injunction permitting it to take “im-
mediate possession” of New Jersey's soil. Hagood v. South-
ern, 117 U. S. 52, 67–68 (1886) (“The State is not only the
real party to the controversy, but the real party against
which relief is sought by the suit”). Because the parties
agree that PennEast is a citizen of Delaware, this suit is
brought “by [a] Citize[n] of another State.” See Tr. of Oral
Arg. 25–27; see also State Farm Fire & Casualty Co. v. Tash-
ire, 386 U. S. 523, 531 (1967).
If that's all true, then a federal court “shall not” entertain
this suit. The Eleventh Amendment's text, no less than the
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Barrett, J., dissenting
Constitution's structure, may bar it. This Court, under-
st
andably, does not address that issue today
2
because the
parties have not addressed it themselves and “there is no
mandatory `sequencing of jurisdictional issues.' ” Sinochem
Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U. S. 422, 431
(2007). The lower courts, however, have an obligation to
consider this issue on remand before proceeding to the mer-
its. See Steel Co. v. Citizens for Better Environment, 523
U. S. 83, 94–95, 101 (1998).
Justice Barrett, with whom Justice Thomas, Justice
Kagan, and Justice Gorsuch join, dissenting.
A straightforward application of our precedent resolves
this case. Congress passed the Natural Gas Act in reliance
on its power to regulate interstate commerce, and we have
repeatedly held that the Commerce Clause does not permit
Congress to strip the States of their sovereign immunity.
Recognizing that barrier, the Court insists that eminent do-
main is a special case. New Jersey has no sovereign immu-
nity to assert, it says, because the States surrendered to
private condemnation suits in the plan of the Convention.
This argument has no textual, structural, or historical sup-
port. Because there is no reason to treat private condemna-
tion suits differently from any other cause of action created
pursuant to the Commerce Clause, I respectfully dissent.
I
As a “general rule,” Congress cannot circumvent state
sovereign immunity's limitations on the judicial power
2
What the Court does say, in a drive-by rumination on the waivability
of “the Eleventh Amendment,” pertains to structural immunity. Ante,
at 506. All of the cases it cites fall outside of the Eleventh Amendment's
text. The Court's language, then, confating structural immunity and
Eleventh Amendment immunity furnishes just the latest example of the
“misnomer” this Court already put to bed in Alden. Supra, at 509.

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Barrett, J., dissenting
through its Article I powers. Allen v. Cooper, 589 U. S.
248,
257 (2020). Thus, even in areas where Article I grants
it “complete lawmaking authority,” Congress lacks a tool that
it could otherwise use to implement its power: “authorization
of suits by private parties against unconsenting States.”
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 72 (1996).
Consistent with this principle, we have rejected arguments
that the Indian Commerce Clause, the Interstate Commerce
Clause, or the Intellectual Property Clause allows Congress
to abrogate a State's immunity from suit. Ibid.; Allen, 589
U. S., at 256–257.
We have recognized but one exception to this general limit
on Congress' Article I powers: the Bankruptcy Clause. Id.,
at 257. Based on the “principally in rem” nature of bank-
ruptcy jurisdiction and the “ `unique history' ” of that clause,
we reasoned that States “already `agreed in the plan of the
Convention not to assert any sovereign immunity defense' in
bankruptcy proceedings.” Id., at 257–259 (quoting Central
Va. Community College v. Katz, 546 U. S. 356, 377 (2006)).
Other than this “good-for-one-clause-only holding,” we have
not held that Article I trumps state sovereign immunity.
Allen, 589 U. S., at 259.
1
State surrender of immunity to private suits is therefore
rare in our constitutional system. Nonetheless, the Court
insists that private condemnation suits are one of the rare
exceptions.
II
A
According to the Court, the States surrendered their im-
munity to private condemnation suits in the “plan of the Con-
vention.” Ante, at 501. Making this showing is no easy
1
Apart from Article I, we have recognized that Congress can subject
nonconsenting States to private suits pursuant to its power to enforce the
Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976).
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task. We will not conclude that States relinquished their
sovereig
n immunity absent “compelling evidence that the
Founders thought such a surrender inherent in the constitu-
tional compact.” Blatchford v. Native Village of Noatak,
501 U. S. 775, 781 (1991).
The Court accepts PennEast's argument that there is such
compelling evidence here. The reasoning goes like this:
States “surrendered any immunity from the federal govern-
ment's eminent-domain power in the plan of the convention”;
when they did so, “they were consenting to that power as it
was then `known' ”; and “[a]t the Founding, eminent domain
was universally known as a power that could be delegated
to private parties.” Brief for Petitioner 23, 33. So, the ar-
gument concludes, the States “were consenting to a power
that the federal government could exercise either itself or
through delegations to private parties.” Id., at 34. The
States “simply do not have any immunity to invoke in this
context.” Id., at 23.
These premises warrant clarifcation. First, the Constitu-
tion enumerates no stand-alone “eminent-domain power.”
2
The Court recognizes—as does our precedent—that the Fed-
eral Government may exercise the right of eminent domain
only “so far as is necessary to the enjoyment of the powers
conferred upon it by the Constitution.” Kohl v. United
States, 91 U. S. 367, 372 (1876); see McCulloch v. Maryland,
4 Wheat. 316, 421 (1819). Any taking of property provided
for by Congress is thus an exercise of another constitutional
power—in the case of the Natural Gas Act, the Commerce
Clause—augmented by the Necessary and Proper Clause.
So when Congress allows a private party to take property
in service of a federally authorized project, it is choosing
2
The Takings Clause of the Fifth Amendment is a limitation on Govern-
ment power, not a grant of it. It provides: “[N]or shall private property
be taken for public use, without just compensation.” It thus presumes
that the power exists by virtue of other constitutional provisions.
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Barrett, J., dissenting
a means by which to carry an enumerated power into
effec
t.
Second, the assertion that the States “surrendered any
immunity from the federal government's eminent-domain
power in the plan of the convention” implies that eminent
domain occupies a unique place in the constitutional struc-
ture. Brief for Petitioner 23; accord, ante, at 500–502 (opin-
ion of the Court). But as just explained, a taking is a gar-
den-variety exercise of an enumerated power like the
Commerce Clause. The Federal Government can exercise
that power to take state land. Oklahoma ex rel. Phillips v.
Guy F. Atkinson Co., 313 U. S. 508, 534 (1941). And it can
take that land via a condemnation action against a noncon-
senting State not because eminent domain is special, but for
the same reason it can sue a nonconsenting State in any
other proceeding: “States have no sovereign immunity as
against the Federal Government.” West Virginia v. United
States, 479 U. S. 305, 311 (1987) (citing United States v.
Texas, 143 U. S. 621, 646 (1892)). The special structural
principles the Court conjures are illusory.
So while the Court casts the inquiry as one about the scope
of the States' consent to the Federal Government's “eminent-
domain power,” that is the wrong way to think about the
problem. Here is the right way: Title 15 U. S. C. § 717f(h) is
an exercise of Congress' power to regulate interstate com-
merce. Congress cannot authorize private suits against a
nonconsenti ng St ate pursuant to its Commerce Clause
power. Seminole Tribe, 517 U. S., at 72–73. Nor does the
Commerce Clause itself abrogate state sovereign immunity.
Cf. Allen, 589 U. S., at 257–259. Therefore, Congress cannot
enable a private party like PennEast to institute a condem-
nation action against a nonconsenting State like New Jersey.
B
The Court's proposed escape route from this analysis—
that the States relinquished their immunity from private
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Barrett, J., dissenting
condemnation suits in the plan of the Convention—is a dead
end.
There is no “Eminent Domain Clause” on which the
Court can rely. Cf. Katz, 546 U. S., at 372–373 (holding that
“those who crafted the Bankruptcy Clause” understood it to
“operat[e] free and clear of the State's claim of sovereign
immunity”); Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976)
(holding that state sovereign immunity is necessarily limited
by the enforcement provision of the Fourteenth Amend-
ment); South Dakota v. North Carolina, 192 U. S. 286, 314–
318 (1904) (holding that Article 3, § 2, gives the Supreme
Court jurisdiction over a suit brought by one State against
another); Texas, 143 U. S., at 642–646 (holding that Article 3,
§ 2, gives the Supreme Court jurisdiction over a suit brought
by the United States against a State). Nor, as discussed,
does the constitutional structure single out eminent domain
for special treatment. And while the Court claims the sup-
port of history, the evidence it cites is beside the point.
The Court relies exclusively on the fact that Congress and
the States, like the Colonies before them, have consistently
authorized private parties to exercise the right of eminent
domain to obtain property for mills, roads, and other public
improvements. See ante, at 495–497. As the Court notes,
Congress did so in the early days of the Republic only within
“areas subject to exclusive federal jurisdiction,” though we
later held that Congress could take property within state
boundaries as well. Ante, at 494–495. This history is long
and undisputed, and the Court presents it as conclusive evi-
dence on PennEast's side of the ledger.
But the question before us is not whether Congress can
authorize a private party to exercise the right of eminent
domain against another private party, which is the proposi-
tion this history supports. Nor is it whether Congress can
authorize a private entity to take state property through
means other than a condemnation suit. The question is
whether Congress can authorize a private party to bring a

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Barrett, J., dissenting
condemnation suit against a State. And on that score, the
Cour
t comes up dry.
The Court cannot muster even a single decision involving
a private condemnation suit against a State, let alone any
decision holding that the States lack immunity from such
suits. It relies exclusively on suits brought by States, suits
brought by the United States, suits brought by private par-
ties against other private parties, and suits brought by In-
dian tribes against private parties—none of which implicate
state sovereign immunity. See Kohl, 91 U. S. 367 (suit by
United States); Guy F. Atkinson Co., 313 U. S. 508 (suit by
Oklahoma); Luxton v. North River Bridge Co., 153 U. S. 525
(1894) (suit by private company to condemn private land);
Stockton v. Baltimore & N. Y. R. Co., 32 F. 9 (CC NJ 1887)
(suit by New Jersey); Cherokee Nation v. Southern Kansas
R. Co., 135 U. S. 641 (1890) (suit by Cherokee Nation against
private company).
Moreover, no one disputes that for 75 years after the
founding, it was unsettled whether the Federal Government
could even exercise eminent domain over private land
within a State. See Baude, Rethinking the Federal Emi-
nent Domain Power, 122 Yale L. J. 1738, 1741, 1761–1777
(2013). It was then 77 years more before we held that “[t]he
fact that land is owned by a state is no barrier to its condem-
nation by the United States.” Guy F. Atkinson Co., 313
U. S., at 534. Given the length of time that these questions
lingered, it strains credulity to say that history unequiv-
ocally establishes that States surrendered their immunity
to pr ivate condemnati on suits i n the plan of the
Convention.
The Court downplays “the historical absence of private
condemnation suits against state-owned lands,” noting that
we did not rely on historical examples when we held that
States consented in the plan of the Convention to suits by the
Federal Government. Ante, at 504–505 (citing Texas, 143
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U. S. 621). But in that decision, the supremacy of the Fed-
era
l Government in our constitutional structure, along with
textual cues, were suffcient to resolve the question. Id., at
644–646. Here, there is no basis for drawing an analogous
structural inference, much less any remotely relevant text.
Supra, at 514–515. History is the only place left to look for
evidence that States consented to private condemnation suits
in the plan of the Convention. See, e. g., Katz, 546 U. S., at
362–363. None exists—which means that the Court falls far
short of mustering the “compelling evidence” necessary to
show that a surrender of immunity to private condemnation
suits was “inherent in the constitutional compact.” Blatch-
ford, 501 U. S., at 781.
C
The Court rejects this conclusion on the ground that state
immunity from private condemnation suits would render the
federal eminent domain power incomplete. Ante, at 503–
504 (stating that the power must be “ `complete in itself ' ”).
The Court is wrong.
To begin with, sovereign immunity would not permit
States to obstruct construction of a federally approved pipe-
line. No one disputes that in our constitutional structure,
the Federal Government is supreme within its realm.
Art. VI, cl. 2. At the same time—and this is the proposition
that the Court resists—the Constitution limits the means
by which the Federal Government can impose its will on
the States. Thus, while the Tenth Amendment imposes
no bar on the federal taking of state land, Guy F. Atkinson
Co., 313 U. S., at 534, the Eleventh Amendment imposes
a bar on Congress' ability to accomplish that taking through
a private condemnation suit like this one. That does not
leave the Federal Government without options. In fact,
there is an obvious option that the Court barely acknowl-
edges: The United States can take state land itself. See
ibid.
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A direct taking, however, is not enough for the Court,
wh
ich—continuing to cast eminent domain as a stand-alone
power—claims that allowing a State to assert an immunity
defense in a private condemnation suit would “diminish the
eminent domain authority of the federal sovereign.” Ante,
at 503. If private parties cannot sue nonconsenting States,
the Court says, delegatees would have no practical means of
taking state property.
3
And that is inconsistent with the
Constitution, the Court tells us, because “[a]n eminent do-
main power that is incapable of being exercised amounts to
no eminent domain power at all.” Ante, at 504. The faw
in this logic is glaring: The eminent domain power belongs
to the United States, not to PennEast, and the United States
is free to take New Jersey's property through a condemna-
tion suit or some other mechanism.
State sovereign immunity indisputably makes it harder for
Congress to accomplish its goals, as we have recognized
many times before. For example, Congress cannot abrogate
state sovereign immunity to pursue the “proper Article
I concerns” of “provid[ing] a uniform remedy for patent in-
fringement and [placing] States on the same footing as
private parties under that regime.” Florida Prepaid Post-
secondary Ed. Expense Bd. v. College Savings Bank, 527
U. S. 627, 647–648 (1999). Nor can it authorize private suits
against States to “ `secur[e]' a copyright holder's `exclusive
3
The Court claims that allowing States to assert sovereign immunity
“would leave delegatees with only one constitutionally permissible way of
exercising the federal eminent domain power: Take property now and re-
quire States to sue for compensation later.” Ante, at 503. But there are
myriad mechanisms for obtaining land through eminent domain, and this
case gives us no occasion to consider which, if any, are available to delega-
tees. See, e. g., 6A J. Sackman, Nichols on Eminent Domain § 27.02[2] (3d
ed. 2019) (“[I]n 1931 there were approximately 269 different methods of
judicial procedure in different classes of condemnation cases, and there
were 56 methods of non-judicial or administrative procedure in condemna-
tion cases”).
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Right[s]' as against a Stat[e],” Allen, 589 U. S., at 256 (quot-
i
ng U. S. Const., Art. I, § 8, cl. 8), or to ensure that States
negotiate in good faith with Indian tribes, Seminole Tribe,
517 U. S., at 47, 72. The same is true here: Sovereign immu-
nity limits how Congress can obtain state property for pipe-
lines. This inhibition of Congress is not, however, a reason
to set sovereign immunity aside. It is instead a deliberately
chosen feature of the constitutional design.
III
While the Court cloaks its analysis in the “plan of the Con-
vention,” it seems to be animated by pragmatic concerns.
Congress judged private condemnation suits to be the most
effcient way to construct natural gas pipelines, and to this
point, States have cooperated. Ante, at 489–490. But now
that New Jersey has chosen to object, it threatens to “thwart”
federal policy. Ante, at 496. If the Court sided with New
Jersey and Congress did not amend § 717f(h), New Jersey (not
to mention other States) could hold up construction
of the pipeline indefnitely. And even if § 717f(h) were
amended, a new statutory procedure might be less effcient
than permitting PennEast to sue New Jersey directly.
Holding New Jersey immune from suit thus would reward
its intransigence.
Our precedents provide a ready response: The defense of
sovereign immunity always has the potential of making it
easier for States to get away with bad behavior—like copy-
right infringement, Allen, 589 U. S., at 252–254, patent in-
fringement, Florida Prepaid, 527 U. S., at 630–634, and even
reneging on debts, Chisholm v. Georgia, 2 Dall. 419, 430
(1793). Indeed, concern about States using sovereign immu-
nity to thwart federal policy is precisely why many Justices
of this Court have dissented from our sovereign immunity
jurisprudence. See, e. g., Seminole Tribe, 517 U. S., at 77
(Stevens, J., dissenting) (objecting that the majority's holding
“prevents Congress from providing a federal forum for a
broad range of actions against States, from those sounding
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Barrett, J., dissenting
in copyright and patent law, to those concerning bankruptcy,
en
vironmental law, and the regulation of our vast national
economy”). The availability of the defense does not depend
on whether a court approves of the State's conduct.
The Court also brushes past New Jersey's interests by fail-
ing to acknowledge that § 717f(h) actions implicate state sov-
ereignty. PennEast has haled a State into court to defend
itself in an adversary proceeding about a forced sale of prop-
erty. See 6A J. Sackman, Nichols on Eminent Domain
§ 27.01[1][b] (3d ed. 2019) (“A condemnation is an adversary
proceeding that the federal government initiates against the
owners to take their property”). As required by Federal
Rule of Civil Procedure 71.1(c), PennEast named New Jersey
in this suit. Even if the State could, as PennEast contends,
refuse to appear and still retain its right to compensation, it
is diffcult to see how the initiation of a judicial proceeding
that seeks to wrest title to state property from the State
does not subject the State to coercive legal process. Cf.
United States v. Alabama, 313 U. S. 274, 282 (1941).
Moreover, obtaining title is not necessarily a cut-and-dry
matter. New Jersey points out that there is sometimes
litigation—as there was here—about whether the property
sought falls within the FERC certifcate. Brief for State
Respondents 24–25. Compensation, too, can be a matter of
dispute. The State and the plaintiff are unlikely to see eye
to eye on what the property is worth, and there is often
a battle of the experts about the property's value. See 4
Sackman, Nichols on Eminent Domain § 13.01[1][b][i] (“Es-
tablishing the value of real estate requires a valuation ex-
pert”); ibid. (“ `Valuation of property is not an exact process
and courts are often greeted with conficting appraisal testi-
mony' ”). If PennEast gets title at a bargain, New Jersey
will suffer a loss even if no money leaves its treasury.
IV
It would be very odd for the government's right to take
property for public use to exist only if private parties can
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exercise it. That, however, is the Court's position. And by
adopti
ng it, the Court is able to make a § 717f(h) action sound
like something other than what it is: a private suit against a
State that Congress has authorized pursuant to its commerce
power. This Court has long held that States did not surren-
der their sovereign immunity to suits authorized pursuant
to Congress' power to regulate interstate commerce, and no
historical evidence suggests a different result obtains for
condemnation suits brought by private parties against non-
consenting States. Because state sovereign immunity bars
these suits, I respectfully dissent.
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