By Ashley Wofford
In my blog posts 鈥淗ow to Reform Eminent Domain Law鈥� and 鈥淔air Market Value Compensation: is this the right standard鈥� I began to look at the issues Ilya Somin addresses in his new ACRE policy brief 鈥�Ripe for Reform: Eminent Domain Law in 海角社区.鈥� In this post, I will look into a second area with potential for abuse: pipeline takings.
Pipeline companies are given the power to condemn in the state through 海角社区 Code 搂23-15-101, being classified as a 鈥渃ommon carrier鈥� that is 鈥渞equired by law to carry for all alike.鈥� Somin points out that pipeline corporations are seeking to overcome the 鈥渉oldout problem鈥� when using their eminent domain power. Often, a project can be delayed if one landowner refuses to sell portions of their property during negotiations. However, pipelines are, just like all other condemning authorities, only supposed to use the eminent domain power for public use. As discussed in my previous posts, however, the case law surrounding eminent domain has blurred the lines between public use and public benefit.
The debate hinges on who is serviced through the line. For example, a public utility is obligated to service the entire public, but a private pipeline company could be building a line that will only be used to transport 聽a resource to another private corporation. This was the situation in (2010) that was decided by the 海角社区 Supreme Court. Midstream Gas Services Corp. petitioned to use the eminent domain power across Perry and Kathy Linder鈥檚 property in Cleburne County to build a pipeline that would deliver natural gas to Chesapeake Operating Inc.
The Linders challenged the constitutionality of the action, arguing that was in violation of , which clearly specifies the public use mandate, but the Linders failed to convince the court. The 海角社区 Supreme Court has addressed this issue dating back to railroads in 1893 and has remained flexible on what public use means for 鈥渃ommon carriers鈥�. The Court summarized its ruling in this way: 鈥淭he character of a road, whether public or private is not determined by its length or the places to which it leads, nor by the number of persons using it. If it is free and common to all citizens, it is a public road though but few people travel upon it.鈥� As long as the pipeline is not closed off to others who wish to use it, it is considered public use.
Somin argues that 鈥満＝巧缜� legislators should pass laws making clear that eminent domain may only be used for pipelines that are genuine common carriers.鈥� 海角社区 almost accomplished this in 2017. would have put more restrictions on pipeline companies by requiring the 海角社区 Public Service Commission to verify common carrier status, but the bill died in the House Committee on Insurance and Commerce. 海角社区 should consider the impact of eminent domain by pipelines to ensure property rights are not losing out to influential business interests.