A Tale of Two Delegations: Some Reflections on PennEast

Abstract

In 2021, the U.S. Supreme Court decided PennEast Pipeline Co. v. New Jersey. The case is often associated with a theory of private delegation--that is, that Congress can delegate its federal eminent domain authority to private companies to build natural gas pipeline projects on state land. But there is more to the story than that. The regulatory scheme that underlies the eminent domain authority at issue in PennEast is also one of public delegation: the delegation by Congress to a federal agency to decide when and where pipeline projects can occur, and when sovereign states will be forced to waive their sovereign immunity in the process. Viewed in this light, PennEast is a watershed case in energy and environmental law. At a time when environmental law is increasingly becoming infrastructure law--because staving off the worst effects of climate change will require the construction of enormous amounts of renewable energy infrastructure, especially high-voltage interstate transmission lines--the Supreme Court gave Congress significant leeway to design and implement infrastructure projects as it sees fit. PennEast thus offers a sharp contrast to the Court's decision in West Virginia v. EPA, which has been widely interpreted as limiting the federal government's ability to respond to climate change. Following PennEast, Congress's power to engage in infrastructure projects--including by delegating much of infrastructure planning and execution to the discretion of a federal agency--has arguably only expanded. This Essay describes and illuminates the twin delegations in PennEast and their relevance for energy and environmental law.