A decision in Wood County Common Pleas Court late Wednesday found a private company cannot use eminent domain to take private property for its pipeline project.
The ruling by Judge Robert Pollex protects the property rights of dozens of Ohioans represented by the 1851 Center for Constitutional Law and others along the pipeline route. However, given the escalation in private pipeline construction throughout the Ohio and the nation, the decision is anticipated to have impact well beyond just the immediate parties to the case or the Utopia Pipeline.
Texas pipeline corporation Kinder Morgan had said the pipeline would result in a $237.3 million positive economic impact on Ohio, based on a study it released in August, and that benefit was largely disputed by the landowners whose property would be affected. Kinder Morgan needs easements to install the pipeline on the property of 117 Wood County landowners and filed eminent domain lawsuits against several dozen.
In April, Kinder Morgan sued property owners in an attempt to take land to install an ethane pipeline to Canada, and have an easement price set by the court. In moving to dismiss the case, the 1851 Center argued that the Utopia Pipeline is not a “public use,” as required by the Ohio Constitution. The 1851 Center explained that the pipeline is, for the sole benefit of one private Canadian corporation, shipping ethane (a byproduct of fracking) underground throughout Ohio directly to that corporation’s Canadian factory, where the ethane will be used to manufacture plastic products such as water bottles.
The pipeline would enter Wood County south of Pemberville and travel west, passing north of Bowling Green but south of Ohio 582. It would proceed south of Haskins and north of Tontogany before crossing the Maumee River southwest of Waterville and connecting with an existing pipeline in Fulton County. Wood County has one of the larger tracts of pipeline at about 20 miles.
The 1851 Center argued that taking Ohioans’ land was not a “public necessity,” since the pipeline’s route was not set in stone by government, giving Kinder Morgan the freedom (unlike natural gas pipelines) to build its pipeline around objecting landowners.
In a decision extolling private property rights under the Ohio Constitution, Pollex agreed. The court explained why such attempted land-grabs by large private corporations, particularly those that are not public utilities or otherwise directly providing services to Ohioans, cannot be sustained:
• “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.”
• “‘Economic development’ alone is not sufficient to satisfy public use requirements.”
• “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.”
• “This project and appropriation is not necessary nor a public use. To the extent that the Ohio statutes authorize a common carrier of Kinder Morgan’s type, the legislation is an unconstitutional infringement upon the property rights of the Defendants.”
The court’s ruling draws a distinction between takings for 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, providing no service to Ohioans. The ruling will not prevent governments or public utilities from acquiring land for legitimately public pipelines.
“The court’s ruling is a substantial victory for private property rights across Ohio, but above all else, this outcome safeguards the dignity and respect to which every Ohioan is entitled,” said Maurice Thompson, executive director of the 1851 Center. “While we fully support the continued development of oil and gas reserves in eastern Ohio, profits 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 ruling is also a reminder that Ohioans enjoy greater property rights than those protected by the U.S. Constitution, due to a stringent state constitution.
The 1851 Center’s position was supported by an amicus brief from the Ohio Farm Bureau, as well as the efforts of the Northwest Ohio law firm of Mayle, Ray & Mayle, LLC.
Thompson also noted that when Kinder Morgan files for eminent domain on property, the company files individual cases, so they are dealing with roughly 20 cases currently divided among the courtrooms of Judges Alan Mayberry, Reeve Kelsey and Robert Pollex.