An issue we've been tracking for a while -- are takings for pipelines for the public's benefit? -- raises another question: how is "the public" defined?
Some courts, like Kentucky's, define the public as the public which the jurisdiction serves. In the Bluegrass Pipeline case, for example, the court of appeals held that a natural gas pipeline which went through Kentucky, but did not have any offramps for the natural gas in Kentucky -- was not "in public service" as required by that state's eminent domain statutes. A Pennsylvania court adopted a similar rationale (even though it held a private pipeline could exercise eminent domain power because it planned gas offramps in Pennsylvania).
And in City of Oberlin v. FERC, No. 18-1248, the U.S. Court of Appeals for the D.C. Circuit recently heard oral arguments about whether FERC can consider benefit to the non-US public when it approves a natural gas pipeline. (Listen to the arguments above.) There's also a case pending in the Iowa Supreme Court.
All that is background to today's links:
- Export pipelines new front in eminent domain fights ("Taking gas and using it for export doesn’t benefit American consumers in any way. The only benefit is to the private corporations profiting from this” said David Bookbinder, an attorney with the Niskanen Center, a libertarian think tank in Washington, who is following the case. “Any of the LNG projects being built in Texas and anywhere else where a pipeline is being built, this (issue) is going to be raised.") - Houston Chronicle
- How eminent domain is blighting farmers in path of gas pipeline (Becky Crabtree, a resident of Lindside, West Virginia, was one of the plaintiffs in the lawsuit whose property was also taken by the pipeline.“MVP had installed the pipeline across our land without paying us a dime,” said Crabtree, a retired teacher.She described how a sinkhole opened in her backyard and the value of her property declined to the point where its virtually unsellable. “The land we had purchased for homesites for our children now has a 42in natural gas pipeline under it or near it. The site and our existing home are in the incineration zone should there be a leak and explosion,” she said.) - The Guardian
- Don't cut Iowa out of the U.S. energy boom (an oped from lawprof James Coleman: "Iowa has far more to gain than lose from American energy markets. Now would be the worst possible time to cut itself off from its neighbors who are its best energy customers. The Iowa Supreme Court must take care not to squander Iowa’s opportunity to be the spark of a new energy revolution.") - Des Moines Register
- Energy and Eminent Domain, 104 Minn. L. Rev. ___ (forthcoming 2019) (a scholarly article by Professor Coleman and lawprof Alexandra Klass: "We suggest ways for policymakers, advocates, and others to reconsider the role of Kelo-style arguments in the context of energy transport projects and enact reforms that will allow critical energy projects to be built in a manner that better accommodates impacted communities and provides additional procedural rights and compensation for landowners.") - SSRN
