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Legal Docket - Gas pipelines and states rights

WORLD Radio - Legal Docket - Gas pipelines and states rights

Does New Jersey have a right to nix a pipeline running through it?


The Supreme Court is seen under threatening skies following a storm in Washington, Wednesday, May 26, 2021. J. Scott Applewhite/Associated Press Photo

MARY REICHARD, HOST: It’s Monday, May 31st. This is The World and Everything in It and we’re so glad you’ve joined us today. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Did you say “May 31st”?

Mary, you know what that means!

…and so does our fellow co-host Myrna Brown, who recorded a little gift…

BROWN: Happy birthday to ya! Happy birthday to ya! Happy birthday, happy birthday … Happy birthday to ya!

Happy birthday, Mary! That’s better than a cupcake!

REICHARD: Calorie-free, beautiful alto voice of Myrna, my sister from another mister. Thank you. Thank you!

EICHER: Before we get started today—just in case you missed it last week—I did want to repeat thanks for all the first-time gifts that came in this month, you responded in such a wonderfully generous way and used up all the triple match that several families had contributed to encourage new financial supporters.

REICHARD: And it all came in early—almost a week before the end of the month.

Definitely gives us momentum that I think is going to help, going into our June Giving Drive. We’ll get that started next week.

EICHER: Interesting, too. We’d heard from a few regular givers wondering whether their June giving might be eligible for a match and we said, you know, that’s up to other donors as we said on the air.

So while a group of us were up at Dordt University for WJI, our fundraising team back in Asheville let me know they’d received a visit from a WORLD family who were traveling in Western North Carolina and they dropped in and took a tour of the offices and our studios.

Then our development team sent me something I want to share with you. Let me read some of the note they sent: “We thoroughly enjoyed the visit and seeing all the faces of the WNG family. Yesterday, Nick and Mary told the podcast listeners that you are looking for some folks to make matching challenges for your June Giving Drive. In honor of our 37th wedding anniversary this June, we would like to offer $37,000 towards a giving match pool.” They had only one request and that was that it was to be an anonymous gift…

REICHARD: Isn’t that something? And happy anniversary by the way! What an encouragement! So we’ll just let this week go by and whoever else wants to pour into that pool that this family got started—we’ll add it all up and by the time we kick off the June giving drive a week from now—we will fill in all the details.

So if you’d like to help fill up the pool, so to speak, for matching gifts, just let us know.

EICHER: And to keep that simple, you can email me at [email protected], just so it’s easy to remember. [email protected] and I’ll pass it along to our fundraising team if you’d like to make the matching pool a little deeper.

REICHARD: It’s time for Legal Docket.

The U.S. Supreme Court handed down three opinions last week, all these unanimous.

First, the court made it more difficult to challenge deportation orders.

You’ll probably remember this one from last week, Mary told you about the case of a man from Mexico deported after a conviction for DUI—driving under the influence. She also reported the Supreme Court had some time after his deportation ruled in a separate case that DUI ought not to be considered a deportable offense for those the law defines as “illegal aliens.”

Later on, the deported man again entered the country illegally. But doing that is even more legally serious. Re-entry carries a higher penalty than initial illegal entry. Nevertheless, he argued that because today a DUI wouldn’t get him deported, his re-entry ought not carry an enhanced punishment.

So he sought to challenge the underlying orders, as we reported.

But last week, the justices—all nine—said no. In the view of the court, the man failed to follow clear procedure to challenge his first deportation, so that’s on him.

REICHARD: Second decision: A win for the island of Guam against the federal government. This dispute is over a dump site in Guam that the US Navy created in the 1940s. Guam sued to recoup some of the costs of cleaning up the site. The narrow question was whether such litigation is allowed. The answer is yes and the case remands to lower court to sort out the details.

EICHER: Third decision is a win for online travel companies like Orbitz and Hotels.com.

Several cities in Texas brought a class action against them seeking certain back taxes. But the cities lost on that matter, and the appeals court assessed certain costs against the cities.

At issue here is one of those costs, a payment made in high-stakes litigation to secure an eventual judgment. That $2.3 million payment is what the cities asked the district court to change, either to reduce it or deny it altogether.

But the high court ruled district courts have no authority to alter costs awarded by appellate courts. So, the cities will have to pay that amount after losing the underlying case.

REICHARD: Okay, now on to oral arguments, two of them today.

This first argument pits states’ rights against the need for more fuel pipelines.

It came about a week before the Colonial pipeline shut down on May 7th that crippled fuel supply on the east coast. That’ll no doubt add urgency to the eventual decision in this case.

Here are the facts. PennEast Pipeline Company is a consortium of five energy companies. It wants to install a pipeline from Pennsylvania to New Jersey, about 120 miles’ worth of pipe.

PennEast needs to acquire land along the route, and that’s the point of conflict here, as New Jersey objects.

Paul Clement argued for PennEast, saying Congress never meant for states to have veto authority like this. And he sounded an alarm:

CLEMENT: If we lose this case, then, you know, this pipeline will not be built, at least in anything like its current configuration, and depending on exactly how we lose this case, I think this federal interstate pipeline, until the law is changed, will be at the mercy of New Jersey, because I don't think there is a way to reroute this pipeline in a way that doesn't implicate a state interest in land.

Clement emphasized that PennEast is really just stepping into the shoes of the federal government here, which has powers of eminent domain.

Justice Elena Kagan seemed to question his premise:

KAGAN: And that raises questions in my mind as to what the government’s involvement in this case was. In other words, was there any supervision by the government? Was there any participation by the government? Did any lawyers for the United States approve the timing of the condemnation action?

Clement answered yes, via the federal agency known as FERC, the Federal Energy Regulatory Commission. Once it approved the route of the pipeline, commissioners took objections from property owners and made modifications to the route.

CLEMENT: That was all done under the auspices of the federal government. They approved the route and the certificate right down to which parcels were affected. Now, once that happens, the way it has worked for 70 years, is that the certificate holder then gets to go into federal court.

...go to federal court to sort out disputes over eminent domain. At that point, the proceeding is against the land itself, not the state. Pipeline companies only pursue eminent domain actions after FERC has done its work.

In essence, Clement argued that FERC delegated its authority to seize land by eminent domain.

On the other side, New Jersey’s lawyer Jeremy Feigenbaum. He argued that the law governing all this, the Natural Gas Act, says nothing about the federal government delegating its power of eminent domain to a private company. And private companies don’t have power to overcome the sovereignty of a state that objects to land condemnation by eminent domain.

Justice Samuel Alito wondered what if instead of PennEast being a party to this dispute, it was FERC, the government agency? Listen to this exchange with New Jersey’s Feigenbaum:

FEIGENBAUM: It's still a lawsuit directly filed against the state by a private party, which we think is exactly what the framers thought would be an offense to the fundamental dignity of sovereigns who can't be hailed into court without their consent.

ALITO: Is New Jersey's dignity really, in any kind of practical terms, compromised to a greater degree based on the caption of the lawsuit?

FEIGENBAUM: We think yes because, if it were otherwise, then all manner of this Court's cases would have to come out, I think, differently...The fact is the offense to a state's dignity is the private party lawsuit, and that's 
the through line of all of this Court's cases is sovereign immunity.


Several justices worried about giving states too much power to block pipelines. But New Jersey calls that an overblown worry. After all, electric transmission and oil companies don’t have eminent domain power. They have to negotiate with the state. So why should natural gas pipelines be any different?

The federal government sides with PennEast in this case. It’s lawyer, deputy solicitor general Edwin Kneedler, argued that if a private party is doing work in the public interest, then eminent domain power extends to it.

I detected no strong leaning either way. However the court decides, implications exist for private landowners and fuel users alike.

Okay, final argument today.

This is a dispute over an esoteric bit of patent law, but it’s important, because it helps the free market work for the general public—protecting intellectual property and thus driving innovation that benefits us all.

Here’s the background. One company, Minerva Surgical, applied for a patent on a device that treats a gynecological problem. It then assigned its rights to the patent to Hologic, a competitor.

Assigning a patent right implies that the thing is able to be patented.

Once the patent registration came through, Hologic said Minerva infringed the patent. Then Minerva claimed the patent isn’t even valid. Minerva developed and wants to sell its own device to treat the gynecological ailment. It says the products are sufficiently different to allow for it, and that the patent paperwork wasn’t adequate to justify a patent.

The two sides are fighting over a doctrine called “assignor estoppel.” The assignor here is the entity assigning the patent. So the assignor can’t put a stop to—that’s where the word “estoppel” comes in—the assignor doesn’t get to challenge the validity of the patent it assigned to someone else, the assignee. Again, assignor estoppel.

Minerva says it’s high time to dump that doctrine. It wants to challenge the validity and has all sorts of reasons why. Its lawyer, Robert Hochman, cites the law as in his favor:

HOCHMAN: The Patent Act doesn’t provide for assignor estoppel and never has. In fact, it says invalidity will be a defense in any action.

Hochman injecting some alliterative creativity later on:

HOCHMAN: This is exactly the kind of Doctrinal dinosaur...that you abandon, that you give up on...

On the other side, Hologic’s lawyer Matthew Wolf. He invoked another doctrine, stare decisis. That says the decision stands—in other words, it looks to court precedent to decide—and when looked at in that way, his client wins. After all, the doctrine of assignor estoppel’s been around a hundred years!

But Chief Justice John Roberts pointed out it’s not as locked up as all that.

ROBERTS: Mr. Wolf, you began by talking about stare decisis and cited some authority for it, but you have to weigh against that, don’t you, the Court’s description of assignor estoppel as a failure and the court’s statement that to whatever extent that doctrine may be deemed to have survived … it’s not controlling. So, it’s not the strongest stare decisis argument

WOLF: So while there has been critical language, when the Court explicitly refuses to overturn a case, there’s no conclusion other than it remains good law.

Perhaps Justice Stephen Breyer summed up the court’s true task in this case:

BREYER: I can understand abolishing it. I can understand keeping it. But limiting it, I’m finding trouble in finding the right way to do that.

The “right way” to limit the doctrine. That’s the task.

People who want to keep the doctrine of assignor estoppel say it’s a good thing, because it settles things once and for all. That reduces uncertainty in the law.

But others say if inventors can never challenge patents that are much broader than what he or she meant to assign in the first place, well, that’s unfair and could wind up choking off innovation.

And that’s this week’s Legal Docket.


WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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