Background and Denbury I
Denbury Green Pipeline-Texas, LLC (Denbury) was formed to build, own, and operate a carbon dioxide pipeline known as the “Green Line.” The pipeline’s route through Texas was designed to be close to various refineries, plants, and other facilities that could use the Green Line to transport carbon dioxide.
The Denbury case began when Texas Rice Land Partners, Ltd. (Texas Rice) refused to allow Denbury to survey two tracts of land it owned in Jefferson County. Denbury filed a T-4 permit with the Texas Railroad Commission to obtain common carrier status, which would give it the power of eminent domain. After obtaining the permit, Denbury filed suit against Texas Rice to obtain access to the land. While the suit was pending, Denbury took possession of Texas Rice’s property pursuant to the Texas Property Code, which permits possession even while the property owner challenges the eminent domain authority.
The trial court granted Denbury’s motion for summary judgment and held that Denbury was a common carrier with eminent domain authority. The court of appeals affirmed, but the Texas Supreme Court reversed and remanded, holding that “the pipeline must serve the public; it cannot be built only for the builder’s exclusive use.” Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 200 (Tex. 2012) (Denbury I). Accordingly, the court held that the pipeline must demonstrate a “reasonable probability” that, “at some point after construction,” the pipeline will “serve the public by transporting gas for one or more customers who will either retain ownership of their gas or sell it to parties other than the carrier.” Id. at 202. The court remanded the case to the trial court and afforded Denbury the opportunity to produce “reasonable proof of a future customer, thus demonstrating that [the Green Line] will indeed transport to or for the public for hire.” Id. at 204.
On remand, Denbury set forth various pieces of evidence, including (1) transportation agreements with two unaffiliated entities; and (2) a transportation agreement between Denbury and Denbury Onshore, which was acting on behalf of itself and other working-interest owners unaffiliated with Denbury. Nevertheless, the Ninth District Court of Appeals held that there were fact issues as to whether, “at the time Denbury Green intended to build the Green Line,a reasonable probability existed that the Green Line would serve the public.” Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC , 457 S.W.3d 115, 121–22 (Tex. App. Beaumont 2015 (pet. granted) (emphasis added). Focusing on Denbury’s intent at the time of its plan to construct the pipeline, the court of appeals rejected Denbury’s evidence of postconstruction transportation contracts.
Denbury appealed, and the Texas Supreme Court was again called upon to apply the test articulated in Denbury I to the facts of the case.
Denbury II: The Texas Supreme Court’s January 6, 2017, Decision
The Texas Supreme Court first held that the court of appeals incorrectly focused on the intent of Denbury at the time of its plan to construct the Green Line. The court pointed out that the phrase “for a person intending to build” that was set forth in the Denbury I opinion was merely a reference to who must prove common carrier status. Denbury,2017 WL 65470, at *4 (Denbury II). As a result of this error, the court of appeals disregarded Denbury’s postconstruction transportation agreements. Moreover, the court of appeals disregarded evidence that the Green Line’s future public use could be supported by its proximity to other carbon dioxide shippers once construction was completed. In sum, by focusing on intent at the time of construction planning, the court of appeals ignored relevant evidence that supported Denbury’s common carrier status.
The supreme court proceeded to clarify and contextualize the Denbury I test by stating that the test balances the property rights of Texas landowners with the state’s “robust public policy interest in pipeline development,” while also respecting constitutional limits placed on the oil and gas industry. Id. at *5. The court reiterated its sentiment that pipeline companies’ prior ability to simply “check[] a certain box on a one-page government form” and become common carriers was inconsistent with the Texas Constitution. Rather, to protect the rights of property owners, pipeline companies must adduce “at least some objective evidence that a pipeline will probably serve the public” to gain eminent domain power.
The court then analyzed Denbury’s evidence and, in the process, identified categories of evidence that support a finding of common carrier status. In general, postconstruction contracts, combined with “the regulatory atmosphere,” “proximity of the pipeline to potential customers,” and other evidence can help prove common carrier status under the Denbury I test. Regarding Denbury, the court noted that one of the contracts—a 2013 transportation agreement with Airgas Carbonic—proved that the Green Line transports carbon dioxide by a customer who retains ownership of the gas. This contract, combined with another agreement and the proximity of the Green Line to identified potential customers, “conclusively establishe[d] that it was ‘more likely than not’ that, ‘at some point after construction,’ the Green Line would serve the public.” Id.
Finally, the supreme court held that the court of appeals incorrectly required that the reasonably probable future use of the pipeline serve a “substantial public interest.” Id. at *6. The case relied on by the court of appeals to derive this heightened standard, according to the supreme court, may have found a “direct, tangible and substantial interest” in the taking in that particular case, but it did not impose this standard on all takings. Id. (citing Coastal States Gas Producing Co. v. Pate,309 S.W.2d 828 (Tex. 1958)).Rather,
[t]o the extent that the degree of service to the public was woven into our test in [Denbury I], we held that for the pipeline to serve the public it must ‘transport[ ] gas for one or more customers who will either retain ownership of the gas or sell it to parties other than the carrier.
Id. (emphasis in original).The supreme court stated that the test set forth in Denbury I that there must be a reasonable probability that the pipeline will, at some point after construction, serve even one customer unaffiliated with the pipeline owner “is substantial enough to satisfy public use.”
Approaches in Other States
While the specific requirements for eminent domain authority vary from state to state, many states face similar challenges in defining the contours of when a pipeline company has shown that it is entitled to eminent domain authority. The analysis usually turns on whether the proposed pipeline will serve the public good or is otherwise necessary.
Pennsylvania Entities Must Meet Dictates of Two Regulations
In Pennsylvania, an entity must meet separate but related requirements set forth in both the Business Corporation Law and the Public Utility Code to be a public utility corporation — that is, a common carrier with the power of eminent domain. The Business Corporation Law provides that “[a] public utility corporation shall . . . have the right to take, occupy and condemn property for . . . the transportation of artificial or natural gas, electricity, petroleum or petroleum products, or water, or any combination of such substances for the public.” 15 Pa. Cons. Stat. § 1152(a)(2) (emphasis added). At the same time, the Public Utility Code merely requires that a public utility possess a certificate of public convenience issued by the Public Utility Commission (PUC). 15 Pa. Cons. Stat. § 1103.
In a recent case that was closely watched by Pennsylvania landowners, it was determined that while Pennsylvania courts “have jurisdiction to review whether an entity attempting to exercise the power of eminent domain meets the [Business Corporation Law] criteria, that jurisdiction does not include the authority to revisit PUC adjudications.” In re Sunoco Pipeline, L.P., 143 A.3d 1000, 1018 (Pa. Commw. Ct. 2016). A certificate of public convenience by PUC “is prima facie evidence that PUC has determined that there is a public need for the proposed service and that the holder is clothed with the eminent domain power.” Id.
North Dakota Holds Hearings to Evaluate Proper Areas of Consideration
In North Dakota, the Public Service Commission (PSC) has the authority to determine whether a pipeline is a common carrier with the power of eminent domain. It does so by holding a hearing. In Eckre v. Public Service Commission, the North Dakota Supreme Court listed four “proper areas of consideration” for a hearing: (1) whether the proposed service is reasonably necessary or would be wasteful and a useless burden on the public, (2) whether it would cause economic waste or public disadvantage, (3) whether it would cause unnecessary duplication of facilities in the area where the proposed facility is to be located, and (4) whether the applicant has the ability to finance its proposed service. 247 N.W.2d 656, 664–65 (N.D. 1976).If the PSC finds that these considerations are satisfied, it may issue a certificate of public convenience and necessity, at which point the pipeline is deemed to be a common carrier with the power of eminent domain.
Oklahoma Interprets Eminent Domain Provisions Narrowly
The Oklahoma Constitution provides that “[p]rivate property shall not be taken or damaged for public use without just compensation. . . . In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.” Okla. Const. art. 2, § 24. The Oklahoma Supreme Court has interpreted the constitutional eminent domain provisions narrowly. It stated that they “are not grants of power but limitations placed upon the exercise of [government] power.” Moreover, “[a] governmental body subordinate to the state (i.e., local governments such as a city, town, municipality or county) may not exercise, create, extend or expand a power of eminent domain in the absence of statutory authority.” City of Pryor Creek v. Pub. Serv. Co., 536 P.2d 343, 345 (Okla. 1975) (citation omitted).
It does not appear that the court has created an express test for determining what constitutes a “public purpose.” With that said, the court, “as a general rule, . . . construe[s] our state constitutional eminent domain provisions ‘strictly in favor of the owner and against the condemning party.’” Stinchcomb v. Oklahoma City, 198 P. 508 (Okla. 1921). In holding that “economic development alone does not constitute a public purpose,” the Oklahoma Supreme Court noted that economic development “must yield to our greater constitutional obligation to protect and preserve the individual fundamental interest of private property ownership.” Board of County Comm’rs of Muskogee Cnty. v. Lowery, 136 P.3d 639, 652 (Okla. 2006). Based on this decision, it appears that pipeline companies face an uphill battle in attempting to exercise eminent domain authority in Oklahoma.
Takeaways
While many viewed the Denbury I and subsequent court of appeals decisions as a potential paradigm shift in favor of the landowner and property rights, the Denbury II decision suggests that the potential change in eminent domain rights is perhaps more moderate. The development and application of the test articulated in Denbury II will take time as lower courts address this standard, but it appears to be a middle ground between the original “check the box” test and a more comprehensive intent test.
Importantly, the decision highlights that initial planning for pipeline projects may need to include careful consideration of which aspects of a pipeline project may be used by unaffiliated companies and how long it may take to have proof of this fact. And, if this planning is not done carefully, landowners may have an ability to challenge a pipeline company’s status as a common carrier and its right to condemn land. In Denbury II, the key pieces of evidence were postconstruction agreements that were obtained years after Texas Rice’s initial legal challenge. Nevertheless, there still had to be agreements and evidence at the time the facts were presented to the court for a decision, and this may have ultimately tipped the scales in Denbury’s favor.
As the long-running Denbury dispute and cases from other states demonstrate, landowners will continue to fiercely contest pipeline companies’ invocation of eminent domain authority, thus ensuring additional disputes in this area. Also clear from these cases is that regardless of the particular test that a court or regulatory body must apply to determine whether a pipeline company should be granted eminent domain authority, there will likely be a struggle to properly strike a balance between property owners’ rights and pipeline development in light of the facts and the law.
J. Laurens Wilkes is a partner and William R. Taylor and Sean B. Solis are associates in Jones Day’s Houston, Texas, office. The views set forth herein are the personal views of the authors and do not necessarily reflect those of Jones Day.