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Common Carrier or Gas Utility: Should Pipelines be Able to Condemn land for right-of-way?

Posted 6:30 AM, October, 1st 2014 by Manning Wolfe & filed under Blog, Case Studies, Legal

Today we have as our guest John McFarland who has given us permission to repost his blog on the RRC proposed rule concerning pipelines and eminent domain. By John McFarland:

Texas Railroad Commission Proposes New Rule on Authority of Pipelines to Condemn Private Property:

The Texas Railroad Commission has published a proposed rule that will change how pipelines are classified as "common carriers" and "gas utilities." That classification determines whether pipelines can exercise the power of eminent domain -- the power to condemn rights-of-way for pipelines.

In 2011, the Texas Supreme Court held in Texas Rice Land Partners v. Denbury Green Pipeline-Texas, LLC that the Railroad Commission's method of classifying pipelines as common carriers and gas utilities was not sufficient to grant them eminent domain authority. The court held that, in order for a pipeline to have condemnation powers, it must serve a "public purpose," and that in order for a pipeline to serve a public purpose, "a reasonable probability must exist, at or before the time common-carrier status is challenged, that the pipeline will serve the public by transporting gas for customers who will either retain ownership of their gas or sell it to parties other than the carrier." Once a landowner challenges its status as a common carrier, "the burden falls upon the pipeline company to establish its common-carrier bona fides if it wishes to exercise the power of eminent domain." The court held that the RRC's policy of classifying pipelines as common carriers or gas utilities based solely on the pipelines' checking of a box on a form filed with the RRC was not sufficient to establish the public purpose of the line.

Since Denbury, the pipeline industry has struggled to find a way to efficiently establish pipelines' common-carrier status without having to litigate the issue with every landowner it wants to cross over. Initially the industry sought legislation authorizing the RRC to have one hearing to establish that a proposed new line will in fact qualify for common-carrier status. Under the bill, that determination would then be binding on all landowners whose property will be crossed by the pipeline. Those landowners would be given the opportunity to participate in the hearings; notice of the hearings would be given by publication in local newspapers. The Texas Farm Bureau, the forestry industry, and other landowner groups opposed the bill. Most major oil and gas associations favored the bill. The bill never made it out of committee.

The RRC's proposed rule essentially proposes to do the same thing that the failed bill did, with one big difference. Under the proposed rule, whenever a pipeline wants to build a new line it must file an application for a permit with the RRC. In that application, the pipeline must submit "a sworn statement from the pipeline applicant providing the operator's factual basis supporting the classification [as a common carrier or gas utility] and purpose being sought for the pipeline," and "documentation to provide support for the classification and purpose being sought for the pipeline." Once the application is complete, the RRC has 30 days to grant or deny the permit. If the permit is granted and the requested classification is approved, presumably the pipeline will have established its right to condemn right-of-way...

The difference between the failed bill and the proposed rule is that no public notice of the permit application is given. Without public notice, there is no opportunity for those affected by the proposed pipeline to question the evidence submitted by the pipeline for the "public purpose" of the proposed line.

Comments may be submitted to: Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967.

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