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Wed January 1, 2014
State Lawmakers To Take Another Crack At Eminent Domain
When the Kentucky General Assembly meets next week, the issue of eminent domain will likely be discussed.
A company wants to build a pipeline to pump natural gas liquids across Kentucky and have proposed condemning private property through the state's eminent domain law. Some leading lawmakers do not want to see that happen.
The complicated law has been on the minds of many activists and landowners who live in the proposed path of the Bluegrass Pipeline, which would carry natural gas liquids to the Gulf of Mexico from the northeast.
The pipeline's builders, Oklahoma-based Williams Co. and Texas-based Boardwalk Pipeline Partners, have repeatedly declared they have the option to use the eminent domain process to secure right of way for the pipeline. The public outcry has made the issue potentially one of the biggest lawmakers will face in a legislative session that begins Jan. 7.
Opponents contend the private companies are not utilities and therefore have no right to use the eminent domain process to condemn property.
The pipeline, which will stretch along a 500-mile route that includes Ohio and Pennsylvania, will carry the liquids that can be used in the manufacturing of a variety of products, including plastics, medical supplies, heating fuel, even carpet.
Penny Greathouse, a farmer whose land is in the proposed pathway, said she is most concerned about a pipeline rupture on her and her husband's 700-acre cattle farm along the border of Franklin and Scott counties.
"I'm worried about a leak and what it might do, and what are we going to do as far farming while they're trying to clean it up," she said.
Greathouse and a group of landowners have filed a lawsuit in Franklin County asking the court to clarify if pipeline builders would have the right to condemn private land for their own uses.
But the General Assembly could settle the issue before that case winds its way through the courts.
"Along the planned route, there are several legislators from both parties with enough clout to pull a bill together and pass it into law," said state Rep. David Floyd, R-Bardstown, one of the lawmakers working on legislation.
Floyd intends to sponsor a bill. So does state Sen. Jimmy Higdon, the Lebanon Republican who chairs the Committee on Veterans Affairs and Public Protection. And state Rep. John Tilley, a Hopkinsville Democrat who chairs the House Judiciary Committee, also is considering similar legislation.
In general terms, Kentucky law allows municipalities and corporations the right to seize land to make way for utilities, railroads, telephone lines and roads meant for public use. But it is unclear whether a privately owned pipeline carrying materials not meant for use or consumption inside Kentucky could make use of the state's eminent domain law to condemn land along the proposed route.
The last time lawmakers tweaked the eminent domain law, it was to expand its application. That was in 2011, when they voted to allow private companies to use eminent domain to secure rights of way for carbon dioxide pipelines, a move that was intended to make it easier for Kentucky, which gets most of its electricity from coal-fired power plants, to deal with ever-increasing federal restrictions on emissions of greenhouse gases.
House Speaker Greg Stumbo, D-Prestonsburg, said he believes current law precludes the Williams Co. from the right of eminent domain, but if current law is fuzzy on that it, a quick fix is in order.
"In my judgment, the way that's addressed most effectively is simply to clarify that the company doesn't have the right of eminent domain," Stumbo said. "They're not going to be serving any Kentucky customers. The right of eminent domain was given so that these utilities could provide services to Kentucky customers. That was the public purpose behind giving them the right to condemn private property. That's not the case here."
The government watchdog group Common Cause has asked Gov. Steve Beshear to get involved, but so far he has been noncommittal.
"I'm looking right now at what if any action to take in the (General Assembly) session to address issues like that," Beshear said this week during a briefing with reporters. "I know there's a lot of concern by some people, particularly in the path of the proposed pipeline. They'd like those issues resolved."
Senate President Robert Stivers, R-Manchester, said the issue may be more complex than it appears on the surface. He said state officials are reviewing whether a federal interstate carrier provision would override the state's authority.
"There are a lot of moving parts," Stivers said. "It may not be a state issue at all."
The company has made deals with property owners in at least nine of 13 counties along the pipelines proposed route.
The path would bypass two properties owned by Roman Catholic communities in central Kentucky. Last month, the company said it would stay well north of the 780-acre tract in Marion County owned by the Sisters of Loretto. The company has also decided to look for a route around the 2,500-acre property owned by the Abbey of Gethsemani in Nelson County. The monks who live at the abbey have refused to allow surveyors on their land.
The company is expecting to spend $30 million to $50 million on the 50-foot wide easement purchases in Kentucky, according to an informational letter from Williams Co. manager Rob Hawksworth that was given to The Associated Press.
Greathouse said she has been offered "high six-figures" for an easement through her land. She said her family has not yet made a decision.
"The money that they're wanting to give you is unbelievable, that's why it's so hard to say no," she said.