Farmers are familiar with eminent domain, so when it comes up in conversation, they pay attention. Unfortunately, in some conversations related to pipelines, eminent domain is being brought up when it shouldn’t be.
The power of eminent domain depends on what the pipeline will be carrying. Interstate pipelines hauling natural gas or crude oil or a refined product such as gasoline or fuel oil come under Federal Energy Regulatory Commission (FERC) jurisdiction and eminent domain could apply to those pipelines. Intrastate pipelines hauling those same materials also typically qualify for eminent domain under state law.
“In many cases, our members in eastern Ohio aren’t being contacted by direct employees of the pipeline company but by land agents, and their responsibility is to put together a portfolio of easements to use for the construction project. These agents are seeing folks and saying ‘We’re hauling ‘natural gasoline’ (a play on words) or ‘liquified natural gas,’”Arnold said.
Landowners should ask the agents directly if they have the right of eminent domain. “They have to tell you direct, and if the answer is no, it means the landowner’s ability to negotiate for a right of way is huge,” he said. If landowners feel threatened in the course of a conversation, they have the right to complain to the Ohio attorney general or other authorities.
Landowners also are advised to contact an attorney if approached about an easement, particularly if the agent is threatening the use of eminent domain.
Additionally, eminent domain does not apply to collection line systems used to take any materials from oil and gas wells to a central collection point, which are regulated by the Ohio Department of Natural Resources’ Division of Oil and Gas.
Bottom line: Be wary if an agent mentions eminent domain in the context of oil and gas collection lines or natural gas pipelines, said Amy Milam, OFBF’s director of legal education.
Even in those situations where eminent domain does apply, it is typically used only as a last resort.
Ohio Farm Bureau can provide a list of attorneys who are well-versed in this area of law. Contact Arnold at 614-246-8294 or via email to request a copy.