1 (Slip Opinion) OCTOBER TERM, 2020

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

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 transpor

tation and sale of natural gas in in terstate commerce. To build an in

terstate pipeline, a natural gas company must obtain from the Federal Energy Regulatory Commission a certificate reflecting 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 As originally enacted, the NGA did not provide a mechanism fo r certificate holders to secure property rights necessary to build pipelines, often leaving certificate holders with only an illusory right to build. Congress remedied this defect in 1947 by amending the NGA to authorize certificate holders to exercise the federal eminent domain power, thereby ensuring that cer

tificates of public convenience and necessity could be given effect. See §717f(h).

FERC granted petitioner PennEast Pipeline Co. a certificate of pub

lic convenience and necessity authorizing construction of a 116-mile pipeline from Pennsylvania to New Je rsey. Several parties, including respondent New Jersey, petitioned for review of F ERC’s order in the D. C. Circuit. The D. C. Circuit has held those proceedings in abeyance pending resolution of this case. PennEast filed various complaints in Federal District Court in New Jersey seeking to exercise the federal eminent 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 Jersey moved to dismiss PennEast’s complaints on sovereign immun

ity grounds. The District Court denied the motion, and it granted PennEast’s requests for a condemnation order and preliminary injunc

tive relief. The Third Circuit vacated the District Court’s order insofar2 PENNEAST PIPELINE CO. v. NEW JERSEY

Syllabus
as it awarded PennEast relief with respect to New Jersey’s property interests. The Third Circuit conc luded that because §717f(h) did not clearly delegate to certificate 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 certificate holders to condemn all

necessary rights-of-way, whether owned by private parties or States. Pp. 6–23.

(a) The United States raises a threshold challenge to the Third Cir

cuit’s jurisdiction below on the gro unds that §717r(b) grants the court of appeals reviewing FERC’s certificat e order (here, th e D. C. Circuit) “exclusive” jurisdiction to “affirm, mo dify, 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 companie s 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 file a condemnation suit against States nor addresses whether §717f(h) grants that right. Contrary to the argument of the Unit ed States, New Jersey’s appeal is not a collateral attack on the FERC order. Pp. 6–7.

(b) The Federal Government has exercised its eminent domain au

thority since the founding, connecting our country through turnpikes, bridges, and railroads—and more re cently through pipelines, telecom

munications infrastructure , and electric transmis sion 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. 7–12. (1) Governments have long taken property for public use without the owner’s consent. Th e United States is no different. While the Con

stitution and Bill of Rights did not use the term “eminent domain,” the Takings Clause of the Fifth Amendment (“nor shall pr ivate property be taken for public use, without ju st compensation”) presupposed the existence of such a power. Initia lly, the Federal Government exercised its eminent domain author ity in areas subject to exclusive federal ju

risdiction. The Court later confirme d that federal eminent domain ex

tended 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—ob

served that eminent domain was a “means well know n when the Con

stitution was adopted” and that “[t]he powers vested by the Constitu

tion in the general government demand for their exercise the3 Cite as: 594 U. S. ____ (2021)

Syllabus

acquisition of lands in all the States.” Id ., at 371–372. Kohl involved the condemnation 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. 7–9. (2) For as long as the eminen t domain power has been exercised by the United States, it has also been delegated to private parties. The Colonies, the States, and the Federal Government have commonly au

thorized the private condemnation of land for public works. And in the years following Kohl , the Court confirmed 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 con

struct a bridge between New York and New Jersey. Congress had the sovereign power to construct bridge s for interstate commerce, and the Court confirmed 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 reflected 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 co nsent—would give rise to the “di

lemma of requiring the consent of th e 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 su perior eminent domain power of the Federal Government when it rejected a challenge to a pri

vate railroad company’s exercise of the federal eminent domain power against land owned by the Cherokees . In reaching that result, the Court acknowledged that “the nation al government, in the execution of its rightful authority, could exe rcise the power of eminent domain in the several States,” and the Court l abeled as “strange” the notion that the Federal Government “could not exercise the same power in a Ter

ritory occupied by an Indian nation or tribe.” 135 U. S., at 656–657. Pp. 9–11. (3) Section 717f(h) delegates to certificate holders the power to condemn any necessary rights-of-way, including land in which a State holds an interest. This delegation of the federal eminent domain au

thority is consistent with the Nation’s history and this Court’s prece

dents. FERC’s issuance to a company of a certif icate of public conven

ience and necessity to build a pipelin e carries with it the power—if the company cannot acquire the necessary rights-of-way by contract at an4 PENNEAST PIPELINE CO. v. NEW JERSEY

Syllabus
agreed compensation—to “acquire the same by the exercise of the right of eminent domain.” §717f(h). This delegation is categorical; by its terms, §717f(h) delegates to certificate holders the power to condemn any necessary rights-of-way, includin g land in which a State holds an interest. Pp. 11–12. (c) Respondents contend that sovereign immunity bars condemna

tion actions against a nonconsenting State. Alternatively, respondents contend that §717f(h) does not speak with sufficient clarity to author

ize such actions. The Court reject s each argument, for reasons stated below. Pp. 13–22. (1) “States’ immunity from suit is a fundamental aspect of the sov

ereignty which the States enjoyed befo re the ratification 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 abrogate s the State’s immunity under the Fourteenth Amendment. A State may al so 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 proceed

ings, suits by other States, and suits by the Federal Government. Pp. 13–14. (2) Respondents do not dispute that the NGA empowers certificate holders to condemn private property , but they contend that the same certificate holders have no power to condemn state-owned property un

der §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 me ans of subjecting States to suit. The States implicitly consented to private condemnation suits when they ratified the Constitution, and respondents’ arguments to the con

trary cannot be squared wi th 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 system. Respondents would divorce the federal eminent domain power from the power to bring condemnati on actions—and th en argue thatthe latter cannot be delegated to private parties with respect to stateowned lands. But the eminent do main power is inextricably inter

-5 Cite as: 594 U. S. ____ (2021)

Syllabus

twined with condemnation authorit y. Separating the two would di

minish 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 permis

sible way of exercising the federal eminent domain power would be to take property up front and requir e States to sue for compensation later. State sovereign immunity would not be served by favoring pri

vate or Government-supported invasi ons of state-owned lands over ju

dicial proceedings.

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 benefit 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 em inent 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. 14–21. (3) Finally, respondents argue th at even if States agreed in the plan of the Convention to condemna tion suits by Federal Government delegatees, the NGA does not authoriz e such suits with the clarity re

quired by the Court’s pr ecedents. There is no requirement, however, that the Federal Government speak with “unmistakable clarity” when authorizing a private party to exerci se its eminent domain power. Pp. 21–22. 938 F. 3d 96, reversed and remanded.

R OBERTS , C. J., delivered the opinio n of the Court, in which B REYER , A LITO , S OTOMAYOR , and K AVANAUGH , JJ., joined. G ORSUCH , J., filed a dissenting opinion, in which T HOMAS , J., joined. B ARRETT , J., filed a dis

senting opinion, in which T HOMAS , K AGAN , and G ORSUCH , JJ., joined._________________

_________________ 1 Cite as: 594 U. S. ____ (2021)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

No. 19–1039

PENNEAST PIPELINE COMPANY, LLC, PETITIONER

v. NEW JERSEY, ET AL

.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 29, 2021]

C HIEF J USTICE R OBERTS 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 pub lic officials or by private par

ties to whom the power has been delegated. And it can be exercised either through the initiation of legal proceedings 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 infra

structure projects. It has done so on its own and through private delegatees, and it has relied on legal proceedings and upfront takings. It has also used its power against both private property and prope rty 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 delegat ees against state-owned prop

erty. Specifically, we are asked to decide whether the Fed

eral Government can constituti onally confer on pipeline companies the authority to condemn necessary rights-of

way in which a State has an interest. We hold that it can.2 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court Although nonconsenting States are generally immune from suit, they surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution. That power carries with it the ability to con

demn property in court. Because the Natural Gas Act del

egates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, in

cluding 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 In

dustry in Appalachia 12 (2d ed. 2012). Initially, difficulties in transporting natural gas limited its distribution, as the available pipeline technology did not allow producers to reach the sprawling American markets. See Tarr, Trans

forming an Energy System, in The Governance of Large Technical Systems 26 (O. Coutard ed. 1999). Over the fol

lowing century, however, that technology slowly improved. In 1891, one of the first interstate pipelines—albeit a rudi

mentary and inefficient one—was built to carry natural gas from central Indiana to Chicago. And in the 1920s, devel

opment began in earnest on the country’s pipeline infra

structure. 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 Fe deral Energy Regulatory Commission) with the authority to administer the NGA, in

cluding by approving the construction and extension of in

terstate pipelines. The NGA provides that in order to build an interstate pipeline, a natural gas company must obtain3 Cite as: 594 U. S. ____ (2021)

Opinion of the Court

from FERC a certificate refle cting that such construction “is or will be required by the present or future public con

venience and necessity.” 15 U. S. C. §717f(e). The NGA also provides that, before issu ing a certificate of public con

venience 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 originally enacted, the NGA did not identify a mecha

nism for certificate holders to secure property rights neces

sary to build pipelines. Natural gas companies were in

stead 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 benefit 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 certificate holders often had only an illusory right to build. Congress acted to remedy this defect. In 1947, it amended the NGA to authorize certificate holders to exer

cise the federal eminent domain power. See ch. 333, 61 Stat. 459. Under 15 U. S. C. §717f(h): “When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensa

tion to be paid for, the ne cessary right-of-way to con

struct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas . . . , it may ac

quire 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 the4 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court federal eminent domain power, the 1947 amendment en

sured that certificates 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 certificate of pub lic convenience and necessity authorizing the construction of a 116-mile pipeline from Lu

zerne County, Pennsylvania, to Mercer County, New Jer

sey. 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 project, which yielded thousands of additional comments. PennEast made a number of route modifications in re

sponse to the concerns commenters had raised. In January 2018, FERC granted PennEast a certificate 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. Cir

cuit. The D. C. Circuit has held those proceedings in abeyance pending resolution of this case. Weeks after FERC granted its application, PennEast filed various complaints in Federal District Court in New Jersey. 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 compensation for affected owners. PennEast also sought preliminary and permanent inj unctive relief allowing it 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 Jer

sey asserts a possessory interest, and 40 parcels in which the State claims nonpossessory interests, such as conserva

tion easements. PennEast also sought to condemn parcels5 Cite as: 594 U. S. ____ (2021)

Opinion of the Court 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 Fe deral Government’s eminent domain power. In re PennEast Pipeline Co. , 2018 WL 6584893, *12 (D NJ, Dec. 14, 2018). Having denied New Jersey’s motion to dismiss on immunity grounds, the Dis

trict 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 re lief 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 eminentdomain power, on the one hand, and its ability to sue nonconsenting States, on the other. Id., at 104. While the Fed

eral Government 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 sover

eign immunity. Id., at 100. After expressing skepticism as to whether the Federal Govern ment could ever delegate this exemption, see id., at 105–111, the court determined that it did not need to “defin itively resolve that question,” because “nothing in the NGA indicates that Congress in

tended to do so,” id., at 111. In reaching this determination, the Third Circuit relied on this Court’s precedents holding that Congress cannot abrogate state sovereign immunity in the absence of an “ ‘unmistakably clear’ ” statement. Ibid. (quoting Blatchford v. Native Village of Noatak , 501 U. S. 775, 786 (1991)). Concluding that §717f(h) did not clearly delegate to certificate hold ers the Federal Government’s6 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court 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 certificate 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 certificate holders the right to file condemnation actions against nonconsenting States. The United States now argues that the Third Cir

cuit lacked jurisdiction to decide that question under 15 U. S. C. §717r(b), which give s the court of appeals review

ing FERC’s certificate order (here, the D. C. Circuit) “exclu

sive” jurisdiction to “affirm, modify, or set aside such order.” According to the United States, New Jersey’s statutory ar

gument, if accepted, would modify FERC’s order because FERC “expressly stated” in the order that PennEast “would have authority to acquire the ne cessary land or property to construct the approved facilities by exercising the right of eminent domain.” Brief for United States as Amicus Curiae 15 (internal quotation marks omitted). PennEast and the respondents both argue that the United States 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 determine whether the Distri ct Court correctly rejected New Jersey’s defense, the Thir d Circuit needed to decide whether §717f(h) grants natural gas companies the right to bring condemnation 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 file a condemnation suit against7 Cite as: 594 U. S. ____ (2021)

Opinion of the Court 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 exer

cise 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 sove reign 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 officers 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 stat

utes authorized the use of eminent domain for the construc

tion of roads, bridges, and river improvements, among other projects. See Stoebuck, A General Theory of Eminent Do

main, 47 Wash. L. Rev. 553, 561–562 (1972). Those vested with the power could either initiate legal proceedings to se

cure 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. ___,8 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court ___ (2019) (slip op., at 3) (con trasting “direct condemnation” with “inverse condemnation”). When the Constitution and Bill of Rights were ratified, 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 found ing, 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 turn

pike 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 confirmed 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 condemn land in Ohio to construct a federal building. We reasoned that “[t]he powers vested by the Constitution in the general government dem and for their exercise the ac

quisition 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 employed to obtain lands for public uses.” Id ., at 372. The federal eminent domain power, we said, “can neither be en

larged nor diminished by a State. Nor can any State pre

scribe 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 fede ral eminent domain applies to state property interests as well. In Oklahoma ex rel. Phillips v. Guy F. Atkinson Co. , 313 U. S. 508 (1941), we9 Cite as: 594 U. S. ____ (2021)

Opinion of the Court 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 implicit 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—includingthrough the initiation of direct condemnation proceedings—within areas subject to federal jurisdiction. See su

pra, at 8; see also Act of Mar. 2, 1831, 4 Stat. 477. In the years following Kohl , the Court confirmed 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 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 po wer to the corporation. 153 U. S., at 527–528 (statement of the case). We rejected Lux

ton’s challenge, explaining t hat Congress “may, at its dis

-10 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court
cretion, use its sovereign powe rs, directly or through a cor

poration created for that obje ct, to construct bridges for the accommodation of interstate commerce.” Id ., at 530. These powers, we noted, could be ex ercised “with or without a con

current act of the State in which the lands lie.” Ibid

. State property was not immune from the exercise of del

egated eminent domain power. In fact, this is not the first 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 Co ngress 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 Jers ey’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 com

munication by railroad, for hardly a case can arise in 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 Chero

kees argued that a private railroad company could not ex

ercise the federal eminent doma in power pursuant to an Act11 Cite as: 594 U. S. ____ (2021)

Opinion of the Court of Congress. Id ., at 655–656. The Act authorized the com

pany to condemn land, including land owned by the Chero

kees, through a set of procedures for determining just com

pensation. See Act of July 4, 1884, ch. 179, 23 Stat. 73. This Court concluded that the Cherokees’ challenge was meritless. 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 governme nt, in the execution of its rightful authority, could exercise the power of eminent do

main 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 Cherokees’ property was co ndemned by a private dele

gatee, as the delegatee was “none the less a fit instrumen

tality to accomplish 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 ex ercised—whether by the Gov

ernment or its delegatees—wit hin state boundaries, includ

ing against state property. We have also stated, as a 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 po ssession of property without au

thority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing au

thority for such takings.” United States v. Dow , 357 U. S.12 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court 17, 21 (1958). The same is true for private delegatees. Lux

ton , for example, arose out of a condemnation proceeding initiated 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 be

gun, 32 F., at 11. Section 717f(h) follows this path. As described above, a natural gas company must obtain a certificate of public con

venience and necessity from FE RC in order to build a pipe

line. Once the certificate is obtained, if the company “can

not 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 company “may acquire the same by the exercise of the right of eminent do

main.” §717f(h). This delegati on is categorical. No one dis

putes that §717f(h) was passed specifically 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) objecting on the ground that it would “permit[ ] the taking of State-owned lands used for State purposes by a private company”); Tenneco Atlantic Pipeline Co. , 1 FERC ¶63,025,

p. 65,203 (1977) (“the eminent domain grant to persons holding [certificates of public convenience and necessity] applies equally to private and st ate lands”). By its terms, §717f(h) delegates to certifica te holders the power to con

demn any necessary rights-of-way, including land in which a State holds an interest.13 Cite as: 594 U. S. ____ (2021)

Opinion of the Court

IV The respondents and the principal dissent do not dispute that the NGA empowers certificate holders to condemn pri

vate property. They argue in stead 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 sufficient cl arity to authorize them. We address each of these arguments in turn.

A “States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratifi

cation 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 Co urt initially held that States could be subject to suit by citizens of other States, see Chisholm v. Georgia , 2 Dall. 419 (1793), the ratification of the Eleventh Amendment soon corrected this error. That Amendment provides that “[t]he Judicial power of the United States shall not be cons trued 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 Citi

zens or Subjects of any Fore ign State.” Our decision in Hans v. Louisiana , 134 U. S. 1 (1890), clarified that States retain their immunity from suit regardless of the citizen

ship of the plaintiff. 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 confirms.” Blatchford , 501 U. S., at 779. Under our precedents, a State may be subject to suit only in limited circumstances. A State may of course consent to suit, although such consent must be “unequivocally ex

pressed.” Sossamon v. Texas , 563 U. S. 277, 284 (2011) (in

-14 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court ternal quotation marks omitted). Congress may also abro

gate 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 Conven

tion” includes 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. ___, ___ (2020) (slip op., at 8), 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 par

ties cannot condemn state-owned property under §717f(h) because there is no applicable exception to sovereign im

munity. In the dissent’s view, PennEast’s suit is barred be

cause §717f(h) is just another “exercise of Congress’ power to regulate interstate comme rce,” and “Congress cannot au

thorize private suits against a nonconsenting State pursu

ant to its Commerce Clause power.” Post, at 4 (opinion of B ARRETT , J.); see also Brief for Respondent NJCF 22–24. The dissent also contends that States did not implicitly con

sent to private condemnation su its when they ratified the Constitution. See post, at 4–7; 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

-15 Cite as: 594 U. S. ____ (2021)

Opinion of the Court ject States to suit pursuant to its commerce power, it is un

doubtedly true under our prec edents that—with the excep

tion 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 ___ (slip op., at 7). In Seminole Tribe of Fla. v. Florida , 517 U. S. 44 (1996), we held that state sov

ereign immunity “restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitu

tional limitations placed upon federal jurisdiction.” Id ., at 72–73. Seminole Tribe concluded that States’ inherent im

munity from suit would be “e viscerated” if Congress were allowed to abrogate States’ immunity pursuant to its Arti

cle I powers. Id. , at 64. But congressional abrogation is not the only means of subjecting States to suit. As noted above, States can also be sued if they have consented to suit in the plan of the Con

vention. And where the States “agreed in the plan of the Convention not to assert any sovereign immunity defense,” “no congressional abrogation [is] needed.” Allen , 589 U. S., at ___ (slip op., at 8). As the cases discussed in Part III show, the States con

sented in the plan of the Convention to the exercise of fed

eral eminent domain power, including in condemnation pro

ceedings brought by private delegatees. The plan of the Convention reflects 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 in

vested with full and complete power to execute and carry out its purposes.” Cherokee Nation , 135 U. S., at 656 (quot

ing Stockton , 32 F., at 19). Put another way, when the States entered the federal system, they renounced their right to the “highest dominion in the lands comprised within their limits.” 135 U. S., at16 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court 656 (quoting 32 F., at 19). The plan of the Convention con

templated that States’ eminen t domain power would yield to that of the Federal Governme nt “so far as is necessary to the enjoyment of the powers conferred upon it by the Con

stitution.” Kohl , 91 U. S., at 372. As we explained in Cher

okee 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 delega

tions of the federal eminent domain power, Congress “may, at its discretion, use its so vereign powers, directly or through a corporation created for that object.” Luxton , 153 U. S., at 530. PennEast’s condem nation action to give effect to the federal eminent 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 delega te that power to private parties. They instead assert that the only “question is whether Congress can authorize a private party to bring a condemnation suit against a State.” Post, at 5; see Brief for Respondent NCJF 40; Brief for Respondent New Jerseyet al. 15. And they argue that because there is no foundingera evidence of such suits, States did not consent to them when they entered the federal system. See post, at 5–7; Brief for Respondent NCJF 39–42; Brief for Respondent New Jersey et al. 13–16. The flaw in this reasoning is that it attempts to divorce17 Cite as: 594 U. S. ____ (2021)

Opinion of the Court 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 pr ivate parties with respect to state-owned lands. But the eminent domain power is inex

tricably 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 co ndemn—when exercised by a delegatee of the Federal Go vernment—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 dimin

ished 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 permissible way of exercising the federal eminent domain power: Take property now and require States to sue for compensation later.* It is difficult 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 Congre ss could authorize FERC itself to condemn the exact same property inte rests, pursuant to the exact same certificate 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 7 (opinion of B ARRETT , 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.18 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court 765 (2002) (internal quotation marks omitted), it wouldhardly be served by favoring private or Governmentsupported invasions of state-owned lands over judicial pro

ceedings. 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 authoriza

tion to take property interests imply a means through which those interests can be peaceably transferred. An em

inent 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 dis

cussed in Kohl

, Stockton

, Cherokee Nation , and Luxton

. The dissent, for its part, declines to say whether Congress could authorize a certificate ho lder to take possession of state property through upfront entry. See post, at 7–8, 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 8, n. 3. But such procedures would almost certainly meet the same fate as traditional condemnation actions under the dissent’s analysis. See Federal Maritime Comm’n v. South Carolina Ports Author

ity , 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 ab ility to exercise its eminent domain power within the States. See post, at 6; Brief for Respondent NCJF 40–42; Brief for Respondent New Jersey et al. 16–18. But we resolved in Kohl and its progeny that19 Cite as: 594 U. S. ____ (2021)

Opinion of the Court 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 unaffected 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 dis

prove its existence.” 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 6–7; 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 Cher

okee Nation —did not insist upon examples from the found

ing era of federal suits against States. The Court instead reasoned as a structural matter that such suits were au

thorized because 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 benefit of the people of all the States.” 143 U. S., at 646. The structural consid

erations discussed above likew ise show that States con

sented to the federal eminent domain power, whether that power is exercised by the Gove rnment 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 6. But the only relevant constitutional text in Texas was a grant of federal jurisdiction, and that cannot explain States’ implicit consent in the plan of the Convention to20 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court 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 nonconsenting States could be subject to private suit. And the existence of federal jurisdiction over controversies “be

tween a State . . . and foreign States,” Art. III, §2, cl. 1, would suggest that States consented in the plan of the Con

vention to suit by other nations, notwithstanding our hold

ing to the contrary in Principality of Monaco v. Mississippi

. A grant of judicial power does not imply an abrogation of sovereign immunity. Texas rested on “the consent of the State” in the constitutional plan, as does our decision today. 143 U. S., at 646.

As a final point, the other dissent offers a different theory—that even if the States consented in the plan of the Convention to the proceedings below, the Eleventh Amend

ment nonetheless divests fede ral courts of subject-matter jurisdiction over a suit filed against a State by a diverse plaintiff. See post, at 3–4 (opinion of G ORSUCH , J.). But under our precedents that no party asks us to reconsider here, we have understood the Eleventh Amendment to con

fer “a personal privilege which [a State] may waive at pleas

ure.” 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); Gunterv. 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 Elev

enth Amendment does not bar the action.” Atascadero State Hospital v. Scanlon , 473 U. S. 234, 238 (1985). Such con

sent may, as here, be “ ‘inherent in the constitutional plan.’ ” McKesson Corp. v. Division of Alcoholic Beverages and To

bacco, Fla. Dept. of Business Regulation , 496 U. S. 18, 30 (1990) (quoting Principality of Monaco , 292 U. S., at 329);

see, e.g., Katz , 546 U. S., at 377–378.21 Cite as: 594 U. S. ____ (2021)

Opinion of the Court

C We 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 Fed

eral 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 del

egate the Federal Government’s ability to sue nonconsent

ing States. 938 F. 3d, at 111 (quoting Blatchford , 501 U. S., at 786); 938 F. 3d, at 111 (“If Congress had intended to del

egate the federal government’s exemption from sovereign immunity, it would certainly have spoken much more clearly.”). The respondents re new 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 deter

mining whether a State has expr essly consented to suit, or when evaluating whether Congress has validly abrogated state sovereign immunity under the Fourteenth Amend

ment. 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 con

demnation 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 private parties. Regardless whether the Federal Govern

ment must speak with unmistakable clarity when delegat

ing its freestanding exemptio n from state sovereign im

munity (assuming such a delegation is even permissible,

see Blatchford , 501 U. S., at 785), there is no similar re

-22 PENNEAST PIPELINE CO. v. NEW JERSEY

Opinion of the Court
quirement when the Federal Government authorizes a pri

vate party to exercise its eminent domain power. The re

spondents do not dispute that the federal eminent domain power can be delegated, or t hat §717f(h) speaks with suffi

cient clarity to delegate th e power to condemn privately owned land. They argue only t hat §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 immuni ty left to waive or abrogate when it comes to condemnation suits by the Federal Gov

ernment 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 Government or a private corporation, whether through an upfront taking or a direct condemna

tion proceeding, and whether against private property or state-owned land. The NGA fits 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 certificate holders to condemn all necessary rights

of-way, whether owned by private parties or States. Such23 Cite as: 594 U. S. ____ (2021)

Opinion of the Court condemnation actions do not offend state sovereignty, be

cause the States consented at the founding to the exercise of the federal eminent domain power, whether by public of

ficials or private delegatees. Because the Third Circuit reached a contrary conclusion, we reverse the judgment be

low and remand the case for further proceedings consistent with this opinion. It is so ordered._________________

_________________ 1 Cite as: 594 U. S. ____ (2021)

G ORSUCH , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 19–1039

PENNEAST PIPELINE COMPANY, LLC, PETITIONER

v. NEW JERSEY, ET AL

.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 29, 2021]

J USTICE G ORSUCH , with whom J USTICE T HOMAS joins, dissenting. I join J USTICE B ARRETT ’s dissenting opinion in full, which ably explains why this case im plicates New Jersey’s struc

tural immunity and how New Jersey never waived that im

munity in the summer months of 1787. I write only to ad

dress 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 juris

diction.” 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’ immun

ity from suit as ‘Eleventh Amendment immunity.’ ” Alden

v. Maine , 527 U. S. 706, 713 (1999); see also, e.g., ante , at 20. 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 “s ole control” of “its own courts.” Alden , 527 U. S., at 740, 749. A State is free to develop its own justicia

bility rules governing state tribunals. See Missouri v. Lewis , 101 U. S. 22, 30 (1880); ASARCO Inc. v. Kadish , 490 U. S. 605, 617 (1989). That2 PENNEAST PIPELINE CO. v. NEW JERSEY

G ORSUCH , J., dissenting The first—“structural immunity”—derives from the structure of the Constitution. See Franchise Tax Bd. of Cal.

v. Hyatt , 587 U. S. ___, ___ (2019) (slip op., at 16). Because structural immunity is a constitutional entitlement of a sovereign State, it applies in both federal tribunals, Semi

nole 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. ___, ___ (2020) (slip op., at 2), a citizen of a different State, or a non -citizen—like a for

eign nation, Principality of Monaco v. Mississippi , 292 U. S. 313, 330 (1934), or an Indian tribe, Blatchford v. Native Vil

lage of Noatak , 501 U. S. 775, 781 (1991). Structural im

munity sounds in personal jurisdiction, so the sovereign can waive that immunity by “consent” if it wishes. Hyatt , 587 U. S., at ___–___ (slip op., at 6–7); 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 principle just discussed. See Allen , 589 U. S., at ___ (slip op., at 4). But the Eleventh Amendment can do two things at once. See Federal 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 diver

sity suits: “The Judicial power of the United States shall not be

—————— is why this Court has found that state-law immunity provides an ade

quate and independent state ground for affirming a state-court judg

ment. 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.3 Cite as: 594 U. S. ____ (2021)

G ORSUCH , J., dissenting
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 filed against states, in law or equity, by diverse plaintiffs.” Baude & Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609, 612 (2021). The Eleventh Amendment sometimes does less than structural immunity: It applies only in federal court (“the Judicial power of the United States ”). And it applies only to diversity suits (“by Citizens of another State ”). But some

times 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, abroga

tions, or exceptions (“to any suit in law or equity”). This case appears to present “the rare scenario” that comes within the Eleventh Amen dment’s text. Brief for Re

spondent State of New Jersey 12. Because PennEast sued New Jersey in federal court, this suit implicates “the Judi

cial 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). Pen

nEast “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 against4 PENNEAST PIPELINE CO. v. NEW JERSEY

G ORSUCH , J., dissenting which relief is sought by the suit.”). Because the parties agree that PennEast is a citizen of Delaware, this suit is brought “by [a] Citizen[ ] of another State.” See Tr. of Oral Arg. 25–27; see also State Farm Fire & Casualty Co. v. Tashire , 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 Constitution’s structure, may bar it. This Court, under

standably, 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).

——————

2 What the Court does say, in a drive-by rumination on the waivability of “the Eleventh Amen dment,” pertains to structural immunity. Ante , at 20. All of the cases it cites fall outside of the Elev enth Amendment’s text. The Court’s language, then, co nflating structural immunity and Eleventh Amendment immuni ty furnishes just the latest example of the “misnomer” this Court already put to bed in Alden

. Supra, at 1._________________

_________________ 1 Cite as: 594 U. S. ____ (2021)

B ARRETT , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 19–1039

PENNEAST PIPELINE COMPANY, LLC, PETITIONER

v. NEW JERSEY, ET AL

.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 29, 2021]

J USTICE B ARRETT , with whom J USTICE T HOMAS , J USTICE K

AGAN , and J USTICE G ORSUCH join, dissenting. A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate inte rstate 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 im

munity 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 condem

nation suits differently from any other cause of action cre

ated 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 through its Article I powers. Allen v. Cooper , 589 U. S. ___, ___ (2020) (slip op., at 7). Thus, even in areas where Article I grants it “complete lawmakin g authority,” Congress lacks a tool that it could otherwise use to implement its power:2 PENNEAST PIPELINE CO. v. NEW JERSEY

B ARRETT , J., dissenting “authorization of suits by private parties against uncon

senting States.” Seminole Tribe of Fla. v. Florida , 517 U. S. 44, 72 (1996). Consistent with this principle, we have re

jected arguments that the Indian Commerce Clause, the In

terstate Commerce Clause, or the Intellectual Property Clause allows Congress to abrogate a State’s immunity from suit. Ibid. ; Allen , 589 U. S., at ___–___ (slip op., at 6– 7). We have recognized but one exception to this general limit on Congress’ Article I po wers: the Bankruptcy Clause. Id. , at ___ (slip op., at 7). Based on the “principally in rem ” nature of bankruptcy 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 im

munity defense’ in bankruptcy proceedings.” Id. , at ___–___ (slip op., at 7–8) (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 ___ (slip op., at 9). 1 State surrender of immunity to private suits is therefore rare in our constitutional system. Nonetheless, the Court insists that private condemnatio n 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 Convention.” Ante, at 15. Making this showing is no easy task. We will not conclude that States relinquished their sovereign immunity absent “compelling evidence that the

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1 Apart from Article I, we have recognized that Congress can subject nonconsenting States to private suit s pursuant to its power to enforce the Fourteenth Amendment. Fitzpatrick v. Bitzer , 427 U. S. 445, 456 (1976).3 Cite as: 594 U. S. ____ (2021)

B ARRETT , J., dissenting
Founders thought such a surrender inherent in the consti

tutional 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 government’s eminent-domain power in the plan of the con

vention”; when they did so, “they were consenting to that power as it was then ‘known’ ”; and “[a]t the Founding, em

inent domain was universally known as a power that could be delegated to private parties.” Brief for Petitioner 23, 33. So, the argument concludes, the States “were consenting to a power that the federal govern ment 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 clarification. First , the Consti

tution enumerates no stand-alone “eminent-domain power.” 2 The Court recognizes—as does our precedent— that the Federal Government ma y exercise the right of em

inent 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 prop

erty 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 a means by which to carry an enumerated power into effect. Second , the assertion that the States “surrendered any

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2 The Takings Clause of the Fifth Am endment is a limitation on Gov

ernment power, not a grant of it. It provides: “[N]or shall private prop

erty be taken for public use, without just compensation.” It thus pre

sumes that the power exists by virtue of other constitutional provisions.4 PENNEAST PIPELINE CO. v. NEW JERSEY

B ARRETT , J., dissenting 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 14–16 (opinionof the Court). But as just explained, a taking is a gardenvariety 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. At

kinson Co.

, 313 U. S. 508, 534 (1941). And it can take that land via a condemnation action against a nonconsenting 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 Cong ress’ power to regulate inter

state commerce. Congress cannot authorize private suits against a nonconsenting State 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 ___–___ (slip op., at 8–9).Therefore, Congress cannot enable a private party like PennEast to institute a condemnation action against a noncon

senting State like New Jersey.

B The Court’s proposed escape route from this analysis— that the States relinquished their immunity from private condemnation suits in the plan of the Convention—is a dead end. There is no “Eminent Domain Clause” on which5 Cite as: 594 U. S. ____ (2021)

B ARRETT , J., dissenting 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 sover

eign immunity”); Fitzpatrick v. Bitzer , 427 U. S. 445, 456 (1976) (holding that state sovereign immunity is neces

sarily limited by the enforcement provision of the Four

teenth Amendment); 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 (hold

ing that Article 3, §2, gives the Supreme Court jurisdiction over a suit brought by the Unit ed States against a State). Nor, as discussed, does the co nstitutional structure single out eminent domain for special treatment. And while the Court claims the support of histor y, 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 9–11. As the Court notes, Con

gress did so in the early days of the Republic only within “areas subject to exclusive fede ral jurisdiction,” though we later held that Congress could take property within state boundaries as well. Ante , at 8–9. 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 propo

sition 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 condemnation suit against a State. And on that score, the Court comes up dry.6 PENNEAST PIPELINE CO. v. NEW JERSEY

B ARRETT , J., dissenting

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 impli

cate 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 Na

tion against private company). Moreover, no one disputes that for 75 years after the founding, it was unsettled whether the Federal Govern

ment 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 st ate is no barrier to its con

demnation 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 unequivo

cally establishes that States surrendered their immunity to private condemnation suits in 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 18–19 (citing Texas , 143 U. S. 621). But in that decision, the supremacy of the Fed

eral Government in our consti tutional structure, along with textual cues, were sufficient to resolve the question. Id. , at 644–646. Here, there is no basis for drawing an analogous7 Cite as: 594 U. S. ____ (2021)

B ARRETT , J., dissenting
structural inference, much less any remotely relevant text. Supra, at 3–4. History is the only place left to look for evi

dence 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 condemna

tion suits was “inherent in the constitutional compact.” Blatchford , 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 16– 18 (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 ti me—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 pri

vate condemnation suit like this one. That does not leave the Federal Government without options. In fact, there is an obvious option that the Co urt barely acknowledges: The United States can take state land itself. See ibid. A direct taking, however, is not enough for the Court, which—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,8 PENNEAST PIPELINE CO. v. NEW JERSEY

B ARRETT , J., dissenting at 17. If private parties c annot sue nonconsenting States, the Court says, delegatees wo uld 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 18. The flaw in this logic is glaring: The em inent 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 uni form remedy for patent in

fringement and [placing] States on the same footing as pri

vate parties under that regime.” Florida Prepaid Postsec

ondary 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 Right[s]’ as against a Stat[e],” Allen , 589 U. S., at ___ (slip op., at 6) (quoting U. S. Const., Art. I, §8, cl. 8), or to ensure that States negotiate in good faith with Indian tribes, Sem

inole Tribe , 517 U. S., at 47, 72. The same is true here: Sov

ereign immunity limits how Congress can obtain state prop

erty for pipelines. This inhibition of Congress is not,

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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 do main power: Take property now and require States to sue fo r compensation later.” Ante, at 17. But there are myriad mechanisms for obtaining land through eminent domain, and this case gives us no occasion to cons ider which, if any, are available to delegatees. See , e.g. , 6A J. Sackman, Nichols on Eminent Domain §27.02[2] (3d ed. 2019) (“[I]n 1931, there were approximately 269 differ

ent methods of judicial procedure in different classes of condemnation cases, and there were 56 methods of non-judicial or administrative pro

cedure in condemnation cases”).9 Cite as: 594 U. S. ____ (2021)

B ARRETT , J., dissenting
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 Convention,” it seems to be animated by pragmatic con

cerns. Congress judged private condemnation suits to be the most efficient way to co nstruct natural gas pipelines, and to this point, States have cooperated. Ante, at 3–4. But now that New Jersey has chosen to object, it threatens to “thwart” federal policy. Ante, at 10. If the Court sided with New Jersey and Congress did not amend §717f(h), New Jer

sey (not to mention other Stat es) could hold up construction of the pipeline indefinitely. And even if §717f(h) were amended, a new statutory procedure might be less efficient 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 ___–___ (slip op., at 2–4), patent infringement, 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 immunity 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 provid

ing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy”). The availability of the defense does not depend on whether a court approves10 PENNEAST PIPELINE CO. v. NEW JERSEY

B ARRETT , J., dissenting

of the State’s conduct. The Court also brushes past New Jersey’s interests by failing to acknowledge that §717f(h) actions implicate state sovereignty. PennEast has haled a State into court to de

fend itself in an adversary pr oceeding about a forced sale of property. 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 proper ty”). As required by Federal Rule of Civil Procedure 71.1(c), PennEast named New Jer

sey in this suit. Even if the State could, as PennEast con

tends, refuse to appear and still retain its right to compen

sation, it is difficult 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 pro

cess. 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 lit

igation—as there was here—about whether the property sought falls within the FERC certificate. Brief for State Re

spondents 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 abattle of the experts about the property’s value. See 4 Sackman, Nichols on Eminent Domain §13.01[1][b][i] (“Estab

lishing 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 conflicting appraisal tes

timony’ ”). 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 th e government’s right to take property for public use to exist only if private parties can exercise it. That, however, is the Court’s position. And by11 Cite as: 594 U. S. ____ (2021)

B ARRETT , J., dissenting adopting 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 surrender their sovere ign immunity to suits author

ized 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 nonconsenting States. Because state sover

eign immunity bars these suits, I respectfully dissent.