There's a lot of pages in the Pennsylvania Supreme Court's opinion (and two concurring opinions) in Robinson Township v. Commonwealth of Pennsylvania, No. J-34A-2016 (Sep. 28, 2016), and the good stuff from the headline starts on page 78. But to understand the case, you need a bit of background.
Pennsylvania has been one of the hotbeds of property owner objections to natural gas (including the related fracking extraction method) and other pipeline projects, and this case was a lawsuit by several townships and municipal officials challenging a state statute which made fracking and eminent domain easier for the gas companies. The townships asserted this went beyond what the state legislature had the power to allow, because it was "special legislation" designed to help a particular industry, and not applicable to all, and allowed an unconstitutional taking of private property for private use. The court held the statute was special legislation and an unconstitutional taking and invalidated it on its face.
We'll let you review the entire opinion if the above seems like it is of interest to you, but eminent domain mavens should not miss the portion where the court deals with the Kelo challenge. The statute authorized the taking of private property for storage of gas, and authorized a "corporation empowered to transport, sell or store natural gas or manufactured gas in this Commonwealth" to do the taking. Defending this delegation to a private entity from a public use challenge, the state argued the statute only applied to PUC-regulated utilities, and therefore the public nature of the takings was guaranteed. The Supreme Court rejected the argument because the statute didn't limit the exercise of the power to PUC-regulated entities, but on its face allowed any corporation that otherwise qualified to take private property:
The Commonwealth Court and Appellees strive mightily to read the language of Section 3241(a) as restricting this taking power to only those corporations which qualify, statutorily, to be public utilities. Ostensibly they do so to establish that the conferral of this power should then be considered beyond constitutional challenge, because public utilities have long been permitted the right to exercise powers of eminent domain conferred on them by the Commonwealth in furtherance of the overall public good. See Appeal of Independence Township School District, 194 A.2d 437, 440 (Pa. 1963) (“The conferring upon a corporation by the state of the power of eminent domain is an official recognition of the fact that the corporation receiving this grant of power is engaged in a business so vital to the public welfare that it is really engaged in the administration of a public trust, and therefore it is entitled to the classification of a quasi public corporation.”). However, the text of Section 3241(a) simply does not allow for such a narrow reading. It allows any corporation “empowered to transport, sell, or store natural gas or manufactured gas in this Commonwealth” to exercise the power of eminent domain over the private lands of another.
Slip op. at 84-85 (emphasis original).
This was a problem, as the statute "confers a broad power on private corporations to take private property of other landowners to store natural gas therein." Slip op. at 86. This was not only a problem under the Pennsylvania Constitution, but also under the Fifth Amendment:
The Commonwealth does not claim, nor can it do so reasonably, that the public is the “primary and paramount” beneficiary when private property is taken in this manner. Instead, it advances the proposition that allowing such takings would somehow advance the development of infrastructure in the Commonwealth. Such a projected benefit is speculative, and, in any event, would be merely an incidental one and not the primary purpose for allowing these type of takings. We therefore conclude that Section 3241(a) is repugnant to both the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution, and we enjoin it from further application and enforcement.
Slip op. at 86.
More background in this story here ("Pa. Supreme Court blocks pro-industry provision of gas drilling law") from the Pittsburgh Tribune-Review.
Robinson Township v. Commonwealth of Pennsylvania, No. J-34A-2016 (Pa. Sep. 28, 2016)
