By JAN LARSON McLAUGHLIN
BG Independent News
A judge ruled this week that one of the pipelines planned in Wood County cannot ride roughshod over local farmland.
Wood County Common Pleas Judge Robert Pollex ruled that Kinder Morgan does not have the authority to use eminent domain since the Utopia pipeline would be transporting ethane for a private company – not for public use.
The ruling came as welcome news to many landowners in Wood County, more than 20 of them represented by Maurice Thompson, of the 1851 Center for Constitutional Law.
“They can really put the screws to Ohio landowners” and pay them “unfair low rates,” Thompson said of pipeline companies, if eminent domain is used.
Thompson had argued that Utopia did not qualify for eminent domain. Unlike pipelines that are sending gas to companies that supply energy for public consumption, the Utopia pipeline would be sending ethane, a byproduct of the fracking industry, to a private plastics company in Ontario.
Kinder Morgan was planning to start construction later this year on the $500 million ethane pipeline from shale sites in southeast Ohio to Canada. The proposed Utopia line would run south of Pemberville, then north of Bowling Green, then cross the Maumee River south of Waterville.
Kinder Morgan claimed the company has the power of eminent domain to bury the pipeline in 21 miles of Wood County. The statement released by the pipeline company on Thursday said the firm isn’t giving up on the project.
“We consider the court’s action to be a misinterpretation of existing law, especially in light of the recent Sunoco decision on September 29, 2016 in the 7th District Ohio Court of Appeals (Harrison County), which upheld the use of eminent domain under similar circumstances,” stated Allen Fore, vice president of public affairs for Kinder Morgan.
“We will appeal today’s decision and are confident of prevailing on appeal,” Fore stated.
The pipeline case is being heard by all three common pleas courts in Wood County because Kinder Morgan has sued so many local landowners, Thompson said.
The landowners’ arguments are two-fold, Thompson explained. First, the private pipeline will provide no public use so it does not qualify for public domain authority. Second, the pipeline company did not explore alternative routes as suggested.
The local families had asked that the pipeline company consider placing the line along road right-of-ways, to avoid going through farm fields or housing lots. The Wood County commissioners have also asked the company to consider routing the pipeline along highways to lessen the burden on landowners.
Though many of the landowners did not want to speak publicly, Jerry Bruns said earlier this fall that he has no intention of selling out to the pipeline company. His farmland near Pemberville has been in his family since the 1860s.
“It’s basically going to damage the soil of the farm,” by compacting the ground, he said. Despite claims by the pipeline company that the soil will be restored to its present condition, Bruns has seen the effects of such projects. A portion of his fields was packed down by a heavy truck five years ago, “and nothing is growing there yet,” he said.
In moving to dismiss the case, Thompson argued that the Utopia Pipeline is not a “public use,” as required by the Ohio Constitution. He further argued that taking Ohioans’ land was not a “public necessity,” since the pipeline’s route was not set it stone by government, giving Kinder Morgan the ability to build its pipeline around objecting landowners.
In his decision, Pollex made the following statements:
- “The fundamental principles in the Bill of Rights in our Constitution declare the inviolability of private property, and Ohio has always considered the right of property to be a fundamental right.”
- “Kinder Morgan’s own expert admitted that the use did not contain or include energy distribution such as natural gas, electricity, etc. The statute that Kinder Morgan is relying upon is primarily for the purpose of serving energy needs of the Ohio public. The conveyance of the pipeline is for the purpose of manufacturing to occur in Canada, not the United States.”
- “In this case Kinder Morgan is taking the private property for the purpose of transporting by pipeline petroleum products for the use of one private manufacturer. The manufacturer is not even a Unites States business, but rather, a Canadian business . . . there is no anticipated circumstances that would show a benefit to the citizens of Ohio or even for that matter, the United States.”
- “It is astonishing to this Court that Kinder Morgan is able to make its own determination to proceed and not be required to obtain any permit or permission from a governmental entity.”
Thompson said the goal was not to put an end to the pipeline, but just make changes that protect landowners.
“We’ve always argued the Utopia pipeline will get built with or without eminent domain,” Thompson said Thursday. But it won’t go through farmland and residential lots whose owners don’t want it.
“They may have to build a line that’s not perfectly straight,” and pay the extra cost, Thompson said.
“While we fully support the continued development of oil and gas reserves in eastern Ohio, profit margins related to private efforts should not be inflated at the expense of Ohioans’ rights. Just like churches, gas stations, supermarkets, and other important private endeavors, pipeline construction can and must move forward without using the governmental power of eminent domain to redistribute land from average Ohioans to wealthy politically-connected cronies and elites.”
The court’s ruling draws a distinction between pipelines facilitating home heating or energy independence and pipelines for purely private commercial interests. While public utilities may exercise eminent domain to provide service to Ohioans’ homes, and certain oil and gas pipelines may even possess eminent domain authority, the Utopia pipeline remains submerged through the entire state, and provides no service to Ohioans, Thompson said.
The ruling is also a reminder that Ohioans enjoy greater property rights than those protected by the federal Constitution, due to a stringent state constitution, he added.
