Court questions pipeline land grab

SANDUSKY — Why was building a pipeline that exported some of its natural gas to Canada enough to justify taking property away from land owners using eminent domain?The decision to construct the NEXUS natural gas pipeline is still being challenged, even though the pipeline has been operating in Erie County and across much of Ohio since 2018.Earlier this month, the District of Columbia Court of Appeals ruled in favor of the landowners who opposed the pipeline. On Sept. 6, the court ordered the Federal Energy Regulatory Commission to answer why the pipeline was needed that it required the use of eminent domain, a government power to seize land for public use.Robert Wheeler of Milan, one of the local landowners who battled the pipeline, said he hopes the ruling will help other landowners defending their rights."Obviously, the pipeline's there to stay," he said. "It's not going to go away."Property rights are a guarantee of the U.S. Constitution, but using eminent domain to take property is one way around that. "We fought this as hard as we could," Wheeler said. "Maybe it will help people in the future."David A. Mucklow, an Akron attorney who represented landowners opposing NEXUS, said technically the court still could vacate the FERC's order, shutting down the gas pipeline. But that appears to be unlikely. Probably the best case scenario is that landowners will get further compensation, he said.Mucklow said the case is likely to keep going for awhile."I think it could drag on for months," Mucklow said."We are reviewing the D.C. Circuit's decision and will be following closely as the FERC determines next steps," NEXUS spokesman Adam Parker wrote in an email to the Register. "This decision does not affect the operational status of the pipeline."The NEXUS gas pipeline, 36 inches wide, runs for about 256 miles from Kensington, Ohio, westward through much of Ohio, passing through Erie and Sandusky counties and then into Michigan.It began operations in last year. Local school districts and local governments are supposed to be getting tax money from the pipeline next year.The court's 3-0 Oberlin v. FERC decision, written by Judge Robert L. Wilkins, rejected many arguments advanced by NEXUS opponents but said FERC needs to better explain why sales to Canadian customers help show why the pipeline is needed.Wilkins noted that NEXUS had contracts with eight customers, including two Canadian companies serving Canadian customers.Given the fact that FERC's order allows the use of eminent domain to force landowners to allow the pipeline to go through their property, FERC needs to give a better answer on why sales to a foreign country can be used to justify the pipeline's "public convenience and necessity," Wilkins wrote.The ruling orders FERC to provide further explanation on the matter.But Wilkins wrote that the court won't overturn FERC's order, "because we find it plausible that the Commission will be able to supply the explanations required, and vacatur of the Commission's orders would be quite disruptive, as the Nexus pipeline is currently operational."Mucklow said the ruling underscores that if private property is taken, it has to be for a public purpose in the U.S."We're not talking about the public in Canada," he said. "We're talking about the public in the United States."While overturning FERC's decision theoretically is possible, "I'm not going to hold my breath," Mucklow said.A class action lawsuit providing damages to landowners is a possibility, he said.Mucklow said the ruling could help landowners battling other pipelines being built to export gas to foreign customers."The opinion was for publication, which means it is precedent," he said. "It's binding on other cases that are coming down the pike."He said landowners battling such projects should not take a defeatist attitude but should engage and vote for politicians who defend their rights.The 800th anniversary of the Magna Carta was celebrated in 2015, he noted."There's an erosion going on with respect to the rights handed down to us from our ancient forefathers," Mucklow said. "People need to be vigilant about protecting their constitutional rights, or eventually they will be whittled down to nothing."Construction of the Nexus pipeline as it was taking place near the intersection of Mason and Mudbrook roads in Milan Township in May 2018.