The chairman of the Kentucky House Judiciary Committee pre-filed a bill to address the use of eminent domain for the Bluegrass Pipeline Monday, but the leading legal opponent of the project says he can’t support it as drafted.
The bill from Rep. John Tilley, D-Hopkinsville, would be considered in the next legislative session beginning in January. It is the first piece of legislation filed that deals with the key legal question at the center of the pipeline debate.
According to a statement Monday from Tilley, the bill aims to place a more “stringent guideline” on allowing the use of eminent domain by companies building such pipelines.
Tilley’s bill would specify the pipelines must be available for “public use as a common carrier… compared to the current law that requires these pipelines only be of a ‘public service’ when it comes to eminent domain.”
But Tom FitzGerald, the environmental attorney who heads the Kentucky Resources Council, said granting eminent domain authority to every pipeline considered a common carrier would actually be a step down from the current requirement that pipelines must be in public service to Kentuckians.
The gist, explained FitzGerald, is that the proposed interstate pipeline — which would carry natural gas liquids, byproducts of the natural gas mining process, from regions northeast of Kentucky to the Gulf Coast — would already be considered a common carrier by federal and state law because its cargo could be used in other states by factories and other users that draw from the pipeline.
But FitzGerald and other opponents have said it’s highly unlikely the liquids will be used specifically in Kentucky, where only one factory has been named that could possibly tap into the pipeline. FitzGerald said that factory is already accessing a different liquids pipeline.
Thus, he doubts the pipeline could be considered “in public service” to Kentuckians.
“I think (the bill) lowers the bar and allows a common carrier pipeline that is not serving Kentuckians to gain the power of condemnation that they do not have currently,” FitzGerald said.
Representatives of the Bluegrass Pipeline, a joint venture between Williams and Boardwalk Pipeline Partners, have said they would only as a last resort use eminent domain to obtain easements to bury the pipeline through landowners’ properties. Representatives have said they believe they have the power of eminent domain under current Kentucky law, though many others disagree.
The roughly 1,100-mile pipeline intends to transport up to 16.8 million gallons of natural gas liquids daily. Project representatives have said the liquids will primarily be used to create plastics, which will benefit Kentuckians who use plastics and particularly Kentucky’s auto industry.
Tilley’s bill would also direct the state Public Service Commission to “play a gatekeeper role if those constructing pipelines cannot reach agreement with private landowners,” according to the release. The PSC would choose to grant or deny eminent domain authority to the project based on whether it finds the pipeline to be in the public interest.
FitzGerald wrote in an email Monday to Tilley that he disagreed with this, saying eminent domain is a “legislative and constitutional function and should not be delegated to the executive branch.”
FitzGerald told The State Journal Monday that Kentuckians want a “true citing process” that, beyond deciding on who gets eminent domain, could stop the project entirely if representatives cannot prove the project is necessary and that the benefits outweigh negatives such as environmental and safety risks.