Practice Areas »

Pipeline Eminent Domain At Center Of Statehouse Bill Proposals

Posted on January 10 2015 by Gabriela Ocampo

The Fifth Amendment of the U.S. Constitution is the foundation for the process of eminent domain. Eminent domain allows state governments to maintain and exert control over the land within their borders. While many assume that this refers to only public spaces and areas that are unoccupied, it actually extends to private property. Private property can be seized for use by the government or private enterprise. This wide ranging power is now coming under scrutiny in New Hampshire as private land is being seized for natural gas pipelines.

One of the proposed gas pipelines will actually cross many states, constituting an interstate pipeline that runs over 70 miles and passes through 17 towns in southern New Hampshire. The 36 inch pipe will transport natural gas through both New Hampshire and Massachusetts. Overall, 62 of the 70 miles will pass through New Hampshire. It will funnel upwards of 2.2 billion cubic feet of gas each day. The gas will come from shale fields in several states including Pennsylvania, Connecticut, New York, New Hampshire and Massachusetts. Overall, it is a $4 billion project that involves numerous natural gas distributors like Liberty Utilities. Liberty, the largest natural gas distributor in the state of New Hampshire, has stated that the pipeline will produce enough gas to heat 65,000 homes on the most frigid day of winter.

The seizure of land for such a project is protected by federal law. The project has also won approval from the Federal Energy Regulatory Committee. All that is required is that the land owners are paid fair market price for their land. As one can imagine, eminent domain is not very popular with these private land owners.

Two bills have been set forth in the state legislature. One will empower a landowner to request that the firm seizing a piece of a parcel be forced to take the entire area. The other bill would allow a town vote on whether the seizing firm should be permitted to take publicly owned land. There is a question as to whether such a vote would be legally binding. Yet it would send a strong opinion to both the federal and state commissions that decide upon the matter. Both bills will also force developers to pay a current use penalty that is created when undeveloped land is subdivided. The bills will be considered at some point this year.

One of the pipelines already installed through the eminent domain power has already become quite the nuisance. It blew a valve in the middle of the night last year. The natural gas flow could only be turned off by an operator in Texas, several states away, at the company's headquarters. If the gas came in contact with a flame, nearby forests would have been set ablaze and dozens of acres would have been decimated. This is the type of nightmare that the citizens of New Hampshire want to avoid. It is why they've taken aim at the eminent domain power. Even if they can't prevent the installation of such an interstate pipeline, there should at least be a requirement that someone be on-site to monitor its operation to prevent disasters that claim lives and property.

Aside from the danger proposed by these interstate natural gas pipelines is the fact that they rip up private property, parks, forests and other green spaces. Since these pipelines cross multiple states, they impact thousands of residents. The statehouse proposals in New Hampshire are likely a preview of what is to come in other states where eminent domain has been used to install similar pipelines and other projects.