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Siting Natural Gas Pipelines Post-PennEast: The New Power of State-Held Conservation Easements

By Zach Wright. Full Text. 

The Natural Gas Act (NGA) governs the siting of interstate natural gas pipelines. There is not a federal body that sites pipelines—instead, the NGA delegates federal eminent domain to private actors to site pipelines through a certificate of need. Private actors have condemned private and state land to site pipelines through NGA-delegated federal eminent domain power for approximately eighty years. In 2019, in In re PennEast Pipeline Co., the Third Circuit held that a private actor with an NGA certificate could not condemn land in which the state of New Jersey had a property interest because the NGA only delegated the federal eminent domain power and did not delegate the federal government’s exemption to a state’s Eleventh Amendment immunity from suit.

This Note argues that every state in the nation can utilize the reasoning in PennEast to prevent the siting of an interstate natural gas pipeline within its borders because every state has conservation easement laws that allow the conveyance of such an easement to a state governmental body that satisfies the “arm-of-the-state” test for the purposes of Eleventh Amendment immunity. Thus, any state can halt a natural gas pipeline in two steps: first, obtain a conservation easement in the way of the proposed pipeline, and second, invoke Eleventh Amendment immunity to prevent a private actor holding a federally approved NGA certificate from condemning the land in question. Whether states act to utilize this power remains to be seen.