Bill seeks to give only government the power to condemn private land in Kentucky
The constitutional amendment, and other measures, would bolster landowner rights at a time when companies have sought to build or reuse hundreds of miles of pipeline in the state for natural gas liquids.
FRANKFORT, Ky. (WDRB) – Government bodies would have the sole power to condemn private property in Kentucky under a proposal before state lawmakers.
House Bill 168, filed by Rep. David Floyd, R-Bardstown, seeks to amend the Constitution and give only the government the ability to use eminent domain. Floyd calls his measure the “Kentucky Landowner’s Bill of Rights.”
“I think you should not delegate that responsibility or that authority to a company that can threaten me, can intimidate me, can cost me money by taking me to court,” Floyd said. “I think it should be the government that does that, because it’s the government that makes the determination ultimately.”
The General Assembly would decide the state and local government units that get condemnation power under the bill, which is co-sponsored by Republican Rep. James Tipton of Taylorsville.
Floyd also has introduced House Bill 213 that would allow private oil and gas firms to seize land for a pipeline only if it is for “public use” and prohibit Kentucky condemnation law from applying to projects carrying a controversial byproduct of natural gas.
Taken together, the bills aim to give more rights to landowners at a time when companies have sought to build or reuse hundreds of miles of pipeline in Kentucky for natural gas liquids, or NGLs. Those naturally occurring substances, which are used in automotive and other industries, are classified as hazardous materials under federal rules.
HB 213 would further restrict energy companies by allowing condemnation only if the pipeline projects are deemed a “public use,” which state law defines as government ownership and use, as well as public utilities and companies shipping oil and natural gas for eventual use by the general public.
Floyd said he doesn’t plan to actively push the measure until the Kentucky Supreme Court addresses a two-year-old lawsuit involving whether a private pipeline developer can condemn land.
A Supreme Court action, which Floyd expects in early February, could make HB 213 redundant and he said he would then withdraw it.
Another bill, filed in the Kentucky State Senate with bipartisan support, takes direct aim at a plan by the Tennessee Gas Pipeline Co., which wants to ship NGLs across 256 miles in the state in a line that now carries natural gas from Louisiana to the northeast.
Tennessee Gas, an affiliate of Houston-based Kinder Morgan, would “repurpose” the pipe, add NGLs and send them south to refineries along the Gulf Coast. The Federal Energy Regulatory Commission has yet to rule on the company’s request to abandon the line, the first step in eventually adding the new product.
The project doesn't need approval from Kentucky regulators. But Senate Bill 26, sponsored by Democrats Julian Carroll and Dennis Parrett and Republican Jimmy Higdon, would make it illegal in Kentucky to “change the substance carried by or the direction of flow of any pipeline” or “change the chemical makeup, temperature, or pressure of any pipeline's contents in such a way that public safety is negatively affected.”
Higdon, who represents Marion County and other areas along the Tennessee Gas route, said he believes pipelines are the safest way to transport NGLs. But he hasn’t wavered from earlier “environmental concerns” about the plan, which calls on converting sections of line that date from the 1940s.
The Tennessee Gas project is one of two ventures that have proposed moving natural gas liquids through Kentucky in recent years. The Bluegrass Pipeline would have used some existing line and built new pipe, but Boardwalk Pipeline Partners L.P. of Houston and the Williams Cos. of Tulsa, Okla., scuttled that project in 2014 because of lukewarm demand.
The debate over eminent domain continued even after the Bluegrass Pipeline stalled. In May 2015, the Kentucky Court of Appeals upheld a lower court ruling, agreeing that the pipeline’s developers don’t have the ability to use condemnation because the NGLs are “not reaching Kentucky consumers” on their way to the Gulf Coast.
The pipeline’s developers have asked the state Supreme Court to review the appeals court’s ruling.
The Tennessee Gas plan has met with resistance from some fiscal courts, conservation groups and federal officials in Kentucky, whose concerns include the aging line and potential contamination to drinking water from a spill.
The Kentucky Association of Manufacturers plans to fight Floyd’s bills, although the organization will respect any court ruling, president Greg Higdon said.
“We’ll be opposed to it as we were before because it can hamper the growth of the private sector in business unnecessarily,” he said.
The bill all have been sent to committees.
The constitutional amendment would need 60 percent of the vote in both chambers of the General Assembly in order to get a statewide vote in the November general election.
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