he Duke Environmenal Law and Policy Clinic poins ou,here could be even bigger implicaions han aking land orpipeline consrucion.
Norh Carolina grans eminen domain auhoriy o cerainprivae eniies; sae law explicily says, “Corporaions … havehe power o eminen domain or he consrucion o … pipelinesor mains originaing in Norh Carolina or he ransporaion o peroleum producs, coal, gas, limesone or minerals.”
According o an aricle in he Norh Carolina Journal o Law& Technology, Norh Carolina should proec he righs o individual propery owners by amending is consiuion andeminen domain laws o limi he oil and gas indusry’s con-demnaion auhoriy.
On Valenines Day 2012, Pennsylvania Governor Tom Corbet— who personally received $1.8 million in campaign conribu-ions rom he naural gas indusry beween 2000 and April2012
— showed his love or he indusry by signing ino lawAc 13,
a piece o legislaion revising he commonwealh’sOil and Gas Ac.
Among he dieren aces o he law wereprovisions inended o preven local zoning rules or gas drill-ing and racking, bu in July 2012, he Commonwealh Courruled hose provisions unconsiuional.
Unorunaely,challenges o he eminen domain provisions o Ac 13 weredismissed,
so oil and gas companies now have he auhoriyo pursue eminen domain o ake cerain propery or “injec-ion, sorage and removal rom sorage o naural gas.”
Pennsylvania’s pro-indusry Ac 13 is no surprising consid-ering he inancial growh ha is occurring in he pocke-books o Pennsylvania’s eleced oicials. MarcellusMoney.org — a projec o Common Cause PA and ConservaionVoers o PA — repored ha as o April 2012, naural gascompanies and associaed indusry groups had spen $8million on campaign conribuions since 2000 and nearly $16million on lobbying expendiures since 2007 jus in Penn-sylvania, and $5 million was spen o lobby Pennsylvaniaoicials in 2011 alone.
Upon signing a bill curbing some uses o eminen domain,Texas Governor Rick Perry old he sae Agriculure Commis-sioner, “I don’ suppose here’s anyhing ha’s more impor-an han our privae propery righs in he sae o Texas.”
Ye he rule ha Perry signed ino law exemped oil and gaspipelines rom he new resricions on eminen domain.
Thelaw expressly exemped energy ransporers, which ransporoil, gas or oil and gas producs by pipeline,
and common-carrier pipelines, which are pipelines ha ranspor crudeperoleum, coal and cerain oher subsances.
To become designaed as a common carrier, a company simplysubmis a one-page paper o he Texas Railroad Commission,he sae agency ha oversees inrasae pipeline raes andsaey, and claims saus on he paper (called a T-4 orm) bychecking he righ line.
Neiher he Railroad Commissionnor any oher sae agency mus approve or permi he con-srucion o an inrasae pipeline by a common carrier or gasuiliy pipeline company.
The process o esablishing common-carrier saus lackscerain due process proecions, such as public noiica-ion and hearings, which are necessary or eminen domainproceedings under he Foureenh Amendmen’s due processclause.
For example, in he Texas Supreme Cour case
Texas Rice Land Parners Ld. v. Denbury Green Pipeline-Texas, LLC,
he cour’s opinion by Jusice Don Willet said: “The RailroadCommission’s process or handling T-4 permis appears o beone o regisraion, no o applicaion. The record suggessha in acceping an eniy’s paperwork, he Commissionperorms a clerical raher han an adjudicaive ac. The reg-isran simply submis a orm indicaing is desire o be clas-siied as a common (or privae) carrier. No noice is given oaeced paries. No hearing is held, no evidence is presened,no invesigaion is conduced.”
Alhough he Texas Supreme Cour ruled in his March 2012opinion ha he curren mehod o sel-declaring commoncarrier is insuicien under Texas law o acquire “unchallenge-able condemnaion power,”
as o he second quarer o 2013no reormaion bills had been passed.
And, in Augus 2012,Lamar Couny Judge Bill Harris ruled via an email rom hisiPhone ha TransCanada, he company behind he KeysoneXL pipeline, had he power o eminen domain and could akepar o a armer’s land or pipeline consrucion.
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