Jun 26, 2020 - Energy & Environment

Supreme Court's decision on reviewing pipeline battle is imminent

Supreme Court steps

Photo: Michael A. McCoy/Getty Images

The Supreme Court may reveal as soon as Monday whether it will review an eminent domain lawsuit that could have big implications for natural-gas pipelines.

The big picture: The dispute, over a 120-mile pipeline from Pennsylvania to New Jersey, is one of three high-court battles representing the culmination of fights over fossil-fuel infrastructure of all kinds raging over the past decade as a proxy for a larger debate about climate change and energy.

The state of play:

  • A federal appeals court ruled in September that developers of the PennEast Pipeline couldn’t use federal law, per the 11th Amendment protecting states’ rights, to seize land controlled by the state to build the project.
  • The court said its conclusion could likely upend how interstate natural-gas pipelines have been built for 80 years. “But that is what the Eleventh Amendment demands,” the court wrote in its September 2019 decision.

The intrigue: The lawyer representing the pipeline developers suggests its odds are better than most.

  • Paul Clement, partner at Kirkland & Ellis, represented the energy companies that prevailed in a just-decided pipeline case at the Supreme Court.
  • Clement, former Solicitor General during the George W. Bush administration, is just one of three lawyers to have argued 100 cases in front of the Supreme Court (the Appalachian Trail case was his 100th).
  • Clement’s representation of a plaintiff increases the odds from 2% to nearly 25% that the Supreme Court will hear the case, according to a 2017 Villanova Law Review article.

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