LG&E can condemn Bernheim Forest land for pipeline after Kentucky Supreme Court declines review

LOUISVILLE, Ky. (WDRB) -- In a blow to Bernheim Forest, the Kentucky Supreme Court won't review an appeals court ruling in a yearslong legal fight over a natural gas pipeline planned for Bullitt County.

The high court's decision last week not to take up the case means a local court decision in 2023 will stand, allowing Louisville Gas & Electric Co. to condemn forest-owned land in a conservation area for the pipeline.

The utility hailed the action as a key milestone in a series of court battles stretching over more than five years, saying it pushes construction of the 12-mile line closer to reality. LG&E first disclosed its plans with state regulators in 2016.

"It's the final regulatory proceeding, basically, so we can move forward with the project," LG&E spokeswoman Chris Whelan said, adding that property owners along the proposed route will be notified before work begins.

But Bernheim officials argue there is one more proceeding that first must play out: a Supreme Court ruling in a lawsuit challenging the pipeline's status as a "public use" under Kentucky law and the state constitution.

"At this point, Bernheim has been condemned, and we've run out options for that," said Andrew Berry, conservation director at Bernheim Forest and Arboretum. "But now there is still a case that is going to be heard by the Kentucky Supreme Court."

The court postponed arguments set for October and has not yet rescheduled them.

Bullitt County pipeline route — The route of LG&E's proposed Bullitt County natural gas pipeline

Bernheim isn't part of that lawsuit. But it has filed a brief supporting landowners who contend that LG&E's reason for using eminent domain runs afoul of Kentucky law because the "primary purpose of the proposed pipeline was to benefit the entirely private interests of Jim Beam" instead of a broader public use.

Jim Beam has facilities in Clermont and Boston.

Lawyers for property owners facing condemnation long have raised questions about the bourbon maker's role in the project and how much gas it would use. John Cox, an attorney representing farm owners Iola Capital before the Supreme Court, argued in court documents that Kentucky law needs to be clarified in condemnation cases.

"This case is about a utility condemning a private landowner's property despite evidence demonstrating that the primary purpose of the proposed taking is to benefit a private entity," he wrote. "Simply put, LG&E is trying to take Iola's land to give to Jim Beam."

A Bullitt County judge and the Kentucky Court of Appeals both have sided with LG&E. Iola wants the high court to reverse those decisions and rule that "pretextual" land takings aren't valid in Kentucky and that the local court needs to determine the main reason for the condemnation, which the judge didn't do.

Another property owner along the pipeline route, the Rummage family, also argues in its brief that the real reason for the condemnation wasn't disclosed. It also claims the proposed pipeline route wasn't properly studied and that LG&E didn't operate in good faith.

LG&E general counsel Monica Braun argues that the utility plans to build the line "to address reliability for current customers and widespread unserved demand." She says in a brief that the landowners are trying to reduce the entire pipeline project to "an elaborate conspiracy."

Braun says Kentucky law gives LG&E the right to condemn land if it's needed to provide natural gas, which qualifies as a "public use" in the state. If the Supreme Court doesn't let it take the easements through eminent domain, she argues, LG&E will have to restart a planning process that began in 2015.

The pipeline across central Bullitt County would connect to existing distribution and transmission lines. LG&E has said the line would allow for a backup supply of gas to customers and supply future industrial users along Ky. 480 and Ky. 245 near Interstate 65.

LG&E proposed the project as part of a routine rate case before the Kentucky Public Service Commission in 2016, a move that raised questions about the public notification process, WDRB News later reported.

Bernheim has been the most high-profile opponent of the pipeline. The project would cross through its Cedar Grove Wildlife Corridor and not the popular, publicly accessible recreation area. But routing the line through the corridor could destroy habitat for bats and other endangered and rare species and damage nearby streams springs, forest officials argue.

LG&E has noted that the roughly 4.5-acre easement amounts to less than 0.028% of Bernheim's total holdings and isn't in a public area. The pipeline would run alongside an electric transmission line owned by the East Kentucky Power Cooperative.

LG&E and KU released the following statement to WDRB on Thursday:

"We’re pleased to be able to move forward to meet a significant customer need. Bullitt County is one of the fastest growing areas in Kentucky. Once completed, this pipeline will help enhance reliability for about 9,500 LG&E natural gas customers who currently have service and provide added capacity necessary to serve ongoing growth within the region. More than 600 customers have been awaiting natural gas service during the seven-year delay of this project. Now that we have all the permits to begin construction, as well as all easements or other rights of access necessary, we’re preparing to move forward and will communicate to those involved prior to beginning construction work."