PennEast is a private pipeline company hoping to bring a natural gas pipeline across the Delaware River from Pennsylvania to Southern New Jersey. Its product will be distributed to utility customers in the area.

In 2015, PennEast applied for certification to proceed under the Natural Gas Act from the Federal Energy Regulatory Commission (FERC). FERC granted permission for a private company to be delegated to exercise eminent domain for all the properties proposed for the route of the pipeline. The exercise of eminent domain would require condemnation suits by PennEast against property owners. The proposed route crossed New Jersey state lands, thus requiring naming the State of New Jersey as a defendant. The federal district court held the delegation of eminent domain to a private party was appropriate. But the state asserted that, pursuant to the Eleventh Amendment, a federal court does not have jurisdiction to hear a case against a state defendant without its consent. Although there is a long recognized exemption from the Eleventh Amendment when the United States itself is the plaintiff, a three judge panel of the Third Circuit found the delegation of that exemption to a private party such as PennEast was constitutionally impermissible, and required that the United States itself, through an appropriate federal official, initiate such a condemnation action.