Landowners Fight Pipeline Construction through Property Rights

Chris Tavenor, General Counsel, November 20, 2017

Each day, environmental cases flood the U.S. court dockets and businesses develop innovative sustainable inventions. It’s impossible to keep up with them all! The Law Center at the Ohio Environmental Council wants to help you keep up by sharing important environmental problems facing Ohio and the United States. Each blog in our series will highlight critical court cases and a “breakthrough technology” that could transform state and national energy and environmental policy for years to come.

By now, you have probably heard stories from this past year when the Rover pipeline spilled drilling fluid into valuable wetlands. The OEC discussed the implications of Rover’s spills in August. You may have also learned of another pipeline, the NEXUS, which just started construction in October. The pipeline application and certification process is messy, but one group of landowners in Green, Ohio has dove into the weeds and opposed the pipeline by suing the Federal Energy Regulatory Commission (FERC) and Nexus Gas Transmission in court.

The arguments of these landowners are spelled out in their pleading, filed with the court last May. They wind through a wide variety of issues, from arguing that FERC’s Environmental Impact Statement is faulty to positing that the pipeline is in fact an export pipeline that FERC must consider under a different procedure than the one already used. These arguments follow a similar vein as many pipeline oppositions: if the landowners can prove that FERC based its approval of the project on a faulty Environmental Impact Statement, or that FERC must use a different procedure, they can delay the project and require further consideration of their environmental concerns.

But the landowners also argue against the construction of the pipeline because they believe NEXUS is violating their property rights. First, they claim that the City of Green has passed laws that prohibit pipeline construction near residences – this issue raises the concept of federal preemption of local and state laws. Second, they claim that the entire process violates due process rights, because FERC failed to notify the landowners of their rights in a proper manner. But most important, the landowners claim that NEXUS cannot pursue eminent domain proceedings to cross their land because the pipeline does not serve the public good.

This last argument drives at an important issue under the 5th Amendment of the US Constitution. The Fifth Amendment states: “Private Property shall not be taken for public use, without just compensation.” In opposing the construction of the Nexus pipeline through their land, the Landowners do not claim they won’t receive just compensation; they believe that the pipeline does not serve public use because the NEXUS pipeline is an export pipeline, sending the natural gas of Ohio, West Virginia, and Pennsylvania to Canada. The Supreme Court of the United States has consistently upheld the taking of private land for utilities as a “public use”, whether through easements or appropriation,  if the new use for the land “benefits the public.” And a “benefit to the public” can include economic and infrastructure development that does not directly benefit nearby community members.

The landowners in the this case have a long road ahead of them that will hold many difficult battles. It will be interesting to see how the court handle this case moving forward, even as NEXUS snaps back with eminent domain proceedings of their own.

Technology Highlight – Hydrogen Fuel-Cell Vehicles in Columbus:

Earlier this year, Ohio State was loaned a Hydrogen Fuel-Cell bus for its Campus Area Bus System. Hydrogen Fuel-Cell vehicles produce zero greenhouse gas emissions, but only one hydrogen fuel station exists in Columbus Ohio. One group – the Renewable Hydrogen Fuel Cell Collaborative – wants to change that, adding five more such stations throughout Columbus and Ohio so transit and delivery fleets could use zero-emissions vehicles. The push for hydrogen fuel-cell vehicles has existed for decades – but is it too little, too late, as companies like Tesla, GM, and Ford push towards completely electric vehicles?