LOUISVILLE, Ky. (WDRB) -- A key court case in LG&E's effort to build a natural gas pipeline in Bullitt County heads to trial on Tuesday.
The utility sued Bernheim Arboretum and Research Forest under Kentucky's eminent domain law in 2019 after the two sides couldn't reach a deal for land along the pipeline route that Bernheim owns and uses as a wildlife corridor.
LG&E argues it can condemn the property. Bernheim contends the land is part of a conservation easement held by state government and, therefore, is public property that can't be seized.
The Bernheim action is one of two remaining condemnation lawsuits filed by LG&E set for trial in Bullitt Circuit Court. Arguments are set to begin at 9 a.m. Tuesday.
In a court filing in late December, Bernheim's lawyers called it a "novel issue of law" under Kentucky statutes, which traditionally allow private property to be taken for a public use.
"In this case, LG&E seeks to condemn a public property interest, where the subject property was funded by state and federal dollars with permanent protections and ongoing responsibilities by a state agency, for the alleged public use by a private utility," the attorneys wrote.
Bernheim bought the 494 acres near the Cedar Grove community with, among other sources, a $706,500 grant from the board of the Kentucky Heritage Land Conservation Fund, according to court documents. The board's members include governor's appointees and high-ranking state officials, such as the commissioner of the Department for Natural Resources.
LG&E lawyers wrote in their own filing last week that Bernheim's arguments mirror those in related condemnation cases that Bullitt Circuit Judge Rodney Burress has already ruled on in the utility's favor.
"In the three and a half years that have elapsed since this action was filed, nearly all of Bernheim's challenges to LG&E's right to condemn have been resolved by this Court and other proceedings," they said.
LG&E's proposed Bullitt County natural gas pipeline route.
LG&E proposed the natural gas transmission pipeline as part of a routine rate case before the Kentucky Public Service Commission in 2016, with regulators approving the request the following year.
The 12-mile line would cut across central Bullitt County and connect to existing distribution and transmission lines. LG&E has said the pipeline would allow for a backup supply of gas to customers and supply future industrial users along Ky. 480 and Ky. 245 near Interstate 65.
Critics say that Jim Beam will disproportionately benefit from the line, and documents show that the bourbon maker was consulted about the project before LG&E approached the Public Service Commission.
Some landowners in prior condemnation cases sought a ruling that Buress hadn't considered whether Jim Beam will get the "primary benefit" from the pipeline. But state law, the judge ruled in September 2021, doesn't require that, only that utilities show there is a public use.
The proposed line "would undoubtedly serve a broader public purpose in addition to greatly benefitting Jim Beam," Burress wrote.
The Bernheim case is just one of several pipeline lawsuits moving through the courts.
The Bullitt County landowners who lost in county court in 2021 have appealed those rulings to the Kentucky Court of Appeals. A separate case challenging the pipeline's approval by state regulators awaits action by the Kentucky Supreme Court.
The project also needs a decision from the U.S. Army Corps of Engineers, which suspended a permit for the pipeline last year while experts review possible impacts to endangered species in the area. The Nationwide Permit 12 governs the construction of oil and gas pipelines near waterways such as lakes, rivers and streams.
The U.S. Fish and Wildlife Service's Kentucky ecological services field office asked for the new evaluation under the Endangered Species Act after two conservation groups threatened a lawsuit. The Kentucky Resources Council and the Center for Biological Diversity claim federal agencies failed to protect three bat species whose underground habitat is endangered by the pipeline route.
A Fish and Wildlife Service spokeswoman did not immediately respond to questions about the status of the work on Tuesday. Perrin de Jong, a staff attorney for the Center for Biological Diversity, said in an email that the review has not yet been completed.
LG&E has 69 of 78 easements necessary for the project, which now is expected to cost $75 million, spokeswoman Natasha Collins said in an email. Initial estimates had a price tag of $39 million.
"A schedule for the project will be determined once we get closer to construction," Collins said.
Copyright 2023 WDRB Media. All Rights Reserved.
