The U.S. Supreme Court is being asked to stop pipeline companies from using eminent domain to take possession of private land for their lines without payment.
“Should private pipeline companies be able to use the government’s power of eminent domain to take land immediately while denying the landowners any compensation for months or even years?” asks the Institute for Justice in a request for review by the Supreme Court.
The case is on behalf of property owners in rural Lancaster County, Pennsylvania. It challenges the practice of pipeline companies “(which by law have been delegated a limited version of the eminent domain power) persuading federal courts to give them immediate possession of other people’s land and pay for it later … often much later.”
The case has broad influence as more natural gas and other pipelines criss-cross the nation.
According to the IJ: “Gary and Michelle Erb purchased a 72-acre tract of land in Conestoga in 2008, and built their dream home there. Their hope was to have their three sons build homes on the land as well, so they could all enjoy the hiking and hunting that is readily available in the beautiful rural setting.
“But the Erbs’ dream was destroyed when the Transcontinental Gas Pipe Line Company (Transco) applied to the Federal Energy Regulatory Commission (FERC) for authorization to build its Atlantic Sunrise Project – a natural gas pipeline running through Pennsylvania, Maryland, Virginia and the Carolinas – a pipeline with a 900-foot blast radius that now sits 400 feet from the Erbs’ dream home. Not satisfied by assurances that such a blast is unlikely, the Erbs have already purchased a new home and are in the process of leaving behind their hard-won dream,” IJ reported.
The system for eminent domain, which is needed for projects such as pipelines and roads, is supposed to work this way: A government, or company, goes to court, the court sets “just compensation,” and when that’s paid, the company can take possession of the specific land needed.
Or it can refuse to pay and not get the land.
“Yet pipeline companies like Transco consistently use a far more drastic power of eminent domain –a power that Congress never granted them — to take immediate possession of a piece of property and then put in their pipeline,” IJ said.
“These companies consistently and predictably abuse this power because the courts are simply rubber-stamping their actions, refusing to force the pipeline companies to operate within the limited powers Congress granted them when it created FERC in the first place,” IJ said.
IJ attorney McNamara said, “If Congress never gave the pipeline companies the power to take immediate possession of a piece of property, no one else may grant them that power.”
For the Erbs, it was two years ago the company took their land, and they’ve yet to be paid, IJ said.
“The pipeline companies accelerate the parts of eminent domain they like—installing pipelines on other people’s land – while slowing down the part they are less enthusiastic about, specifically, paying the property owners,” McNamara said.
The company currently appears on the Erbs’ property “unannounced and without … permission,” like it owns the land, even thought it doesn’t.
Michelle said: “They act like they own the easement area, but they don’t own it. They don’t pay taxes on that land; we do. They have taken away our sense of privacy and a sense of security. It is scary when people walk on your property out here in the country and you have no idea who they are.”
Gary warned that lower courts “are not reining in the abusive actions of these pipeline companies”
“In fact, the courts are letting these companies get away with whatever the companies say is necessary to get their project completed. That is the opposite of what judges are supposed to do.”
The petition points out that Congress could have authorized such a procedure, but specifically chose not to do so.