W're not going to say much about the U.S. Court of Appeals for the Third Circuit's decision in Columbia Gas Transmission, LLC v. 1.01 Acres, No. 13-4458 (3d Cir. Sep. 26, 2014), since the opinion is not too long, and the court's conclusion is pretty "straightforward" as it noted:
The issue before us is straightforward: does Columbia Gas Transmission, LLC ("Columbia"), have the right of eminent domain to obtain easements over the land of objecting landowners, outside of the existing right of way, in order to replace deteriorating pipeline? The answer is equally straightforward and clear: yes.The regulatory authority given to natural gas companies such as Columbia actually anticipates replacement outside the existing right of way as we discuss below, and contains no adjacency requirement. The issue before us, then, whether Columbia has a right to replace the pipeline outside of the existing right of way, is actually a non-issue. But, the District Court put a peculiar “spin” on the regulations in question, finding them to be ambiguous by adopting its own definition of “replace” and concluding that a “notice” of “proposed rulemaking” for “Emergency Reconstruction of Interstate Natural Gas Facilities” promulgated by the Federal Energy Regulatory Commission (“FERC”) after 9/11 should somehow be viewed as resolving this ambiguity in the law. Our dissenting colleague adopts this argument. However, we suggest that the statute and regulations are clear and the case before us is easily resolved.
Slip op. at 5.
One big problem we have with this opinion is its loose use of the term "right of eminent domain." We see this a lot, and sometimes we are guilty of imprecise wording outsevles, referring to "the right to take," and the like.
But this case is a good reminder that even though it may have been delegated the power of eminent domain, a private company doesn't have any "right" of eminent domain. The same holds true, in our view, even when a government agency is taking property, because (as one of our favorite law profs used to remind us), "governments don't have rights, they exercise powers." Powers which have been delegated to those governments by the people. And even though eminent domain is an inherent power of the sovereign (it's good to be the king), ultimately under our system, the people are sovereign, and own that power. .
So yes, we're being persnickety about word choice here. But we think it's a point that bears repeating.
Columbia Gas Transmission, LLC v. 1.01 Acres, No. 13-4458 (3d Cir. Sep. 26, 2014)
