Both bills modify the 1938 Natural Gas Act, which presumes there’s a public interest in the construction of natural gas pipelines and which allows eminent domain to be used to acquire that land.
The proposal from Sen. Jeff Merkley, D-OR, attempts to end the presumption that eminent domain can be used on private land for a for-profit export pipeline. It would also take away federal permission for the seizure of state land.
“It’s just absolutely inappropriate for a for-profit company who’s exporting gas to be able to take away private property rights,” Merkley says.
The proposed 235-mile Jordan Cove pipeline and liquefied natural gas export terminal in Coos Bay would be built by Pembina, a Canadian company. In March the company was given provisional approval for the terminal but construction can’t start without first getting several permits from the state. Jordan Cove is challenging the need for those permits in court.
“The company told me way back when they started, they would not use eminent domain, that they would be generous and figure out how to persuade people that it was in their financial interests to have a pipeline on the land,” Merkley says. “But they instead held eminent domain over their heads year after year.”
Similarly to Merkley’s, a second bill from Sen. Ron Wyden, D-OR, would modify the Natural Gas Act by adding a series of factors the Federal Energy Regulatory Commission (FERC) needs to consider when allowing eminent domain for pipeline construction.
Those considerations include the property rights of impacted landowners, whether a pipeline would benefit the public at-large versus a private interest, the availability of alternatives for the project, ecological and wildlife impacts, the burden on low-income communities and communities of color, and greenhouse gas emissions.
Changing the assumption that state lands can be taken through eminent domain could have the biggest implication for Jordan Cove, according to Susan Jane Brown, a staff attorney with the Western Environmental Law Center, which has represented a group of dissenting landowners along the proposed pipeline route. She says that issue has not been settled in the case of Jordan Cove.
“If the legislation became law and we weren’t at that point yet where Pacific Connecter [pipeline] was looking to condemn state land, then the legislation would be a bar to condemning state property for construction of the pipeline,” she says. “It would certainly take a lot of rejiggering around that pipeline route in order to avoid state lands entirely.”
Brown says Merkley’s bill would have less significance for many private landowners in the path of a pipeline because the draft legislation only applies to future decisions coming from FERC, not the eminent domain decisions currently being fought over in court that landowners are most concerned about.
Both pieces of legislation are in draft form and could be introduced in September when the Senate returns to session. But, Brown says, with an election just months away and a Republican controlled Senate, it's more realistic that they could be taken up next year with a new Congress.
“We’ll see what that Congress’ appetite is for this kind of legislation,” she says.
