In Natural Gas Pipeline Co. of America LLC v. Foster OK Resources LP, No. 118,185 (May 5, 2020), the Oklahoma Supreme Court upheld the necessity of a taking of an easement across private property by a private pipeline company that possessed a FERC certificate of public convenience. Nothing too surprising there. The bar for whether a taking is necessary to fulfill the stated public use is set about as low as a bar can be set in the law. Nearly total judicial deference (some might say “abdication,” but that’s a debate for another day). No different here.
But what really grabbed our attention was the court’s blithe conclusion that the private natural gas pipeline company could not contract away the federally-delegated power of eminent domain. You know this thread of argument: the government always retains its governmental power, and even where it expressly agrees to not exercise its power (or only exercise it in a certain way), the current government cannot so bind a future government, and we end up with the concept that private agreements that limit future exercises of government power are not enforceable. There may be a few limited exceptions, but for the most part the current city council cannot, for example, agree to never take a certain piece of property in the future.
Here, decades ago, the property owner and the pipeline entered into private agreements for two easements that granted the company the right to install and maintain the pipeline. Flash forward to the present, and the company now wants to take these easements (and other property not covered by the agreements). The owner objected, arguing that there’s no need to obtain by condemnation that which the company already possessed by virtue of the granted easements.
The court rejected out-of-hand the owner’s argument that in the private easement agreements, the pipeline company had contracted away its power of eminent domain. More precisely, that the company had agreed to not exercise its delegated eminent domain power. The court held that the “right of eminent domain is inalienable” (sounds like certain rights), relying on a case where the court rejected the argument about a city. Slip op. at 6 (“We apply Burke and hold NGPL cannot surrender, alienate, contract away, or waive its right of eminent domain.”).
That argument makes some sense when the government itself is the party claimed to have bargained away its sovereign powers. Government always retains sovereignty. But does it make sense when the party is, as here, a private non-governmental, non-sovereign corporate entity? Why can’t it agree to not exercise delegated power? The court doesn’t explain.
Natural Gas Pipeline Co. of America LLC v. Foster OK Resources LP, No. 118,185 (Okla. May 5, 2020)