Ruling could help farmers battling pipelines

SANDUSKY — An Ohio court has ruled private pipeline companies can't take farmers' property using eminent domain if the pipeline only serves a private purpose.The ruling in Kinder Morgan Utopia LLC vs. PDB Farms of Wood County LLC, et al., will be useful to property owners dealing with similar projects, said Maurice Thompson, executive director of the 1851 Center for Constitutional Law, a libertarian public interest law firm in Columbus.But Thompson added the ruling won't help landowners in Erie and Sandusky counties who are fighting the proposed Nexus natural gas pipeline. A different set of rules apply to gas pipelines, Thompson said.The pipeline company says it will appeal.The proposed Utopia pipeline would run from Harrison County to Fulton County, according to the project's website, passing through Huron, Sandusky and Seneca counties. Construction is supposed to start in January 2017, with the pipeline coming online in January 2018. The 12-inch pipeline would connect with an existing pipeline to move ethane and ethane-propane to Windsor, Ont. in Canada to make plastics.Texas pipeline company Kinder Morgan sued Ohio farmers in April, seeking to take their land for the pipeline project.But the 1851 Center file a motion for dismissal, arguing the pipeline is not a "public use," required under the Ohio Constitution for the use of eminent domain to seize private property.Wood County Common Pleas Judge Robert Pollex agreed with the 1851 Center. The Bowling Green judge tossed out Kinder Morgan's lawsuit last week."In this case Kinder Morgan is taking the private property for the purpose of transporting by pipeline petroleum products for the use of one private manufacturer. The manufacturer is not even a United States business, but rather, a Canadian business … there is no anticipated circumstances that would show a benefit to the citizens of Ohio or even for that matter, the United States," the judge wrote.The ruling means that farmers can simply refuse to allow the pipeline, forcing it to take another route, or can negotiate a fair deal, Thompson said.A Kinder Morgan spokeswoman said her company is confident it can get the ruling reversed."We consider the court's action to be a misinterpretation of existing law, especially in light of the recent Sunoco decision on Sept. 29, 2016, in the 7th District Ohio Court of Appeals (Harrison County), which upheld the use of eminent domain under similar circumstances," said Melissa Ruiz."We plan to appeal the decision and are confident of prevailing on appeal," she said.Thompson told the Register the lawsuit could affect similar pipeline projects in Ohio."You'll see more of these in your area as well," he said.But he said the judge's ruling won't help farmers fighting the planned Nexus natural gas pipeline, a 36-inch pipeline 255 miles long which would run from Kensington in eastern Ohio to southeast Michigan, passing through southern Erie County and also through Sandusky County.That's because the routes of natural gas pipelines are set by FERC, the Federal Energy Regulatory Commission. Such projects have a stronger legal argument for eminent domain authority, and the courts have always upheld the laws dealing with natural gas pipelines, Thompson said.