Another term of the US Supreme Court has come and gone and, as I have for years, I will encapsulate it in this blog. Welcome to the discussion of this and the following three posts.
This term began in the midst of the Presidential election campaign, last October, only two weeks after the demise of Justice Ginsburg, only one week after the confirmation of her successor, Amy Coney Barrett. This was an extraordinary political context. It was almost as if the Republican leadership in the US Senate, which four years before had loudly announced its devotion to the principle that the Senate should not deliberate on a Supreme Court vacancy during an election year, regardless of who might be helped or hurt by that deliberation ("keep this tape"!), had been acting hypocritically and opportunistically in making those solemn avowals.
Ah, what an unfortunate appearance.
Also, we saw that this Supreme Court, with Justice Barrett on board, steadfastly refused to be drawn into any election-related case during the transition period. My own view, FWIW, is that this refusal was not the consequence of a devotion to principle on the part of the Justices. It was the consequence of their sense of the absurd, and their desire not to be drawn into a clown show. Whatever you might think of former President George W. Bush, HE knew how to get the Supreme Court's help. It requires disciplined messaging, both for the general public and in the legal filings, and a top-notch legal team. If you've got that, you don't really need principle.
The Trump crowd was apparently confused by the fact that the phrase "Four Seasons" is a common one for various hospitality and retail establishments. One cannot imagine the Bush team engaging in such a screw-up. And so Al got gored but Biden did not.
As is customary, there are many important decisions of the term that I will not discuss. For example, outside of this paragraph I won't go into the high court's resolution of a riparian rights dispute between Florida and Georgia. That litigation concerned the water in the Apalachicola-Chattahooche-Flint river basin. It was the newbie, Justice Barrett, who wrote the decision for the unanimous Court, dismissing a lawsuit brought by Florida eight years before. Florida wanted SCOTUS to cap Georgia's use of the water, though it was rather confused as to where the alleged waste was occurring. It initiated the lawsuit working on the theory that the use of water in metro Atlanta was the big drain, but later shifted to blaming those damned Georgian farmers. Both urban and rural Georgians can relax: Florida gets no relief at their expense. And that is all you'll learn about the subject here.
Such arbitrary exclusions notwithstanding, wehave a lot of fascinating ground to cover.
Where do we start?
We start at the end, or very near the end. On Tuesday, June 29, a very split court decided the PennEast pipeline case. We will devote most of the rest of this post to that decision, which is a nice fit for our infrastructure obsessed political moment. Tomorrow, we will discuss some of the issues that arose this year over the interpretation of federal statutes, with a special focus on two patent law cases. One of these, Google v. Oracle, has had a clash-of-the-titans feel to it for years.
In part three, Thursday of this week, we'll treat of a farrago of constitutional issues, including search and seizure, tribal sovereignty, and regulatory takings. Next week, on our fourth and final installment, we'll focus in on the first amendment, speaking of freedom of the press, the free exercise of religion, and the free speech of a high school student.
With a Pipeline
But right now ... the pipeline. New Jersey opposes PennEast's planned natural-gas pipeline, so it wouldn't use its own power of eminent domain to obtain the ground under which it will be planted. But the line is going to be an interstate structure (originating in Pennsylvania) and PennEast has a permit from the Federal Energy Regulatory Commission, which in turn was acting under the authority of the Natural Gas Act of 1938. And a 1947 amendment to the NGA made federal certificates of this sort a matter of the federal eminent domain power. So, PennEast can secure its route against private parties in 'Jersey without asking the state government for so much as a fiddle-dee-dee.
The issue here arose from the fact that the FERC approved route passes through state lands. and lands held by the New Jersey Conservation Foundation. FERC sued under the federal eminent domain authority and New Jersey asserted state immunity.
The procedural posture: the US district court granted PennEast its requested relief. The appeals court for the Third Circuit vacated that order. It said that the statutory language does not specifically grant FERC certificate holders the authority to sue non-consenting states, and the usual default rule of state sovereign immunity applies in the absence of very clear statutory language. PennEast appealed that Third Ciruit decision.
The US Supreme Court split 5-4. Chief Justice Roberts wrote for the majority, joined by Breyer, Alito, Sotomayor, and Kavanaugh. That may look unfamiliar as a grouping. Gorsuch and Barrett each wrote a dissent. Gorsuch's dissent was joined only by Thomas, whereas Barrett's dissent was signed also by Gorsuch, Thomas, and Alito.
Personally, I'm torn. I oppose what I have often called the "myth of sovereignty." The more the avatars of that myth deconstruct it for us all, the better. So, one cheer at least for any decision that cuts back on sovereign immunity from private suit.
But .... is this a private suit? It is federal-versus-state, and the pipeline company is a cat's paw.
The 11th amendment to the Constitution says, "The 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 subjects of any foreign state." Since PennEast is chartered in Delaware, it is a citizen of that state -- and thus of "another state" from New Jersey in precisely the sense of the above language. So: how does the judicial power extend here?
Energy and Climate
Finally, I have to get around to the fact that this is a NATURAL GAS pipeline. The specifics of climate and energy economics did not and probably should not have entered into the legal arguments, but I'll make a point here nonetheless. Since the Paris Accords, there has been a good deal of talk about how nat gas is the cleanest of the fossil fuels. So, although it is a carbon-emitting fossil fuel, it is on the side of history (runs this claim), a bridge fuel civilization can employ while greener methods of generating energy get scaled up.
The IEA is very skeptical of this position, It contends in fact that there should be no new investment in fossil fuel infrastructure, inclusive of natural gas. Though the world won't get to all-renewables in a heartbeat, the NG and LNG in various inventories will continue to be sold and burnt and somebody will continue to make money off them. The problem is that putting money into new infrastructure, or even modernizing old infrastructure, tends to create "sunk costs" and institutionalizes pressure to make good on those costs, keeping these pipelines and related systems in operation for decades to come.
Natural gas, then, may prove to be a bridge to nowhere.
"Ah, Faille -- how dare you!" my libertarian and anarchist colleagues shriek. "The IEA just wants to 'go green' because those are world government types who want to do the central planning on it all!"
Perhaps. I simply paraphrased the IEA above, I wouldn't literally say that there should be no further investment in natgas. I would say it would be great were the federal government to stop forcing pipelines for it through the states, though. Perhaps as the old ones age, the price of nat gas and the other fossil fuels will rise sufficiently to give a kick-start to scaling up the greener means of production. THAT is a better candidate. Bridging not with a somewhat clearer fossil fuel but with the market consequences of the rusting of older structures.
I'll see you tomorrow for King Kong and Godzilla.
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