15 States Sue Trump to Stop Fast-Tracked Energy Expansion
On the first day of President Trump’s second term, he signed Executive Order 14156, entitled “Declaring a National Energy Emergency.” That EO directs the heads of executive departments and federal agencies — including the United States Army Corps of Engineers, the Department of Interior, and the Advisory Council on Historic Preservation — to issue permits and other approvals necessary for energy-related projects on an expedited and emergency basis. The EO specifically urges the wholesale use of eminent domain as one possible vehicle to seize private land:
If an agency assesses that use of either Federal eminent domain authorities or authorities afforded under the Defense Production Act (Public Law 81–774, 50 U.S.C. 4501 et seq.) are necessary to achieve this objective, the agency shall submit recommendations for a course of action to the President, through the Assistant to the President for National Security Affairs.
In light of this sweeping executive action, 15 states (the “States”) have sued President Trump’s administration, alleging that the EO avoids mandatory review procedures under federal laws like the Clean Water Act and the Endangered Species Act. The States’ complaint states that “[t]he invocation of the Nation’s emergency authorities, however, is reserved for actual emergencies—not changes in Presidential policy…. The shortcuts inherent in rushing through emergency processes fundamentally undermine the rights of States.” The complaint goes on to allege as follows:
“Unlawfully bypassing proper permitting procedures for hundreds of projects currently proposed in and around the Nation—and presumably many more in the future—will result in significant and irreparable harm to state natural and historic resources and the people and biota that rely on those resources for drinking, farming, recreating, and habitat.”
“To prevent these harms to Plaintiff States from rushed review untethered to any actual emergency, the Court should declare that the Executive Order is unlawful, that the agency defendants’ proposed and effectuated efforts to carry it out are arbitrary, capricious, and not in accordance with law, and enjoin any actions by the agency defendants to pursue emergency permitting for non-emergency projects.”
The spirit of the States’ lawsuit here brings back memories of the widespread opposition to the controversial Keystone and PennEast Pipeline projects, where privately owned pipeline companies sought to use eminent domain to acquire private and state-owned property. Our firm blogged about some of the legal challenges here:
- Keystone Pipeline Project Chugging Along
- Federal Appeals Court Rules PennEast Cannot Haul State into Federal Court for Pipeline Takings
- US Supreme Court Alert – PennEast Pipeline Cert Petition Granted!
- PennEast Pipeline Prevails Because State Consented to Taking Under the “Plan of the Constitutional Convention” in 1787
One of those challenges was brought by New Jersey and resulted in a 2021 U.S. Supreme Court decision in the PennEast Pipeline case, where the Court ultimately answered question “whether the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of way in which a State has an interest.” SCOTUS reasoned that “[b]ecause the Natural Gas Act delegates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, including against state-owned property.” New Jersey claimed immunity from a takings lawsuit, but SCOTUS disagreed because the States “consented to the federal eminent domain power, whether that power is exercised by the Government or its delegatees.”
In sum, President Trump’s EO 14156 raises questions regarding the extent that private energy companies can influence or expedite eminent domain “recommendations” to the President to achieve the Order’s stated objective. Like many forms of government action, the EO clearly prioritizes public expansion at the expense of private property rights. We’ll keep a watchful eye on how the States’ lawsuit plays out at the District Court level.
One of the easiest ways for a property owner to begin the fight against eminent domain is to retain experienced counsel as early as possible. For over 55 years, McKirdy, Riskin, Olson & DellaPelle, P.C. has concentrated its practice in this special area of the law and has earned a reputation for persistently defending its clients’ constitutionally-recognized property rights. If you are confronted with the threat of eminent domain, please feel free to contact us for a free consultation.
