A Columbus law firm specializing in eminent domain will attempt to block NEXUS Gas Transmission from beginning pipeline construction on private properties, including in Fulton County, prior to compensating the owners for easements.
If NEXUS receives an anticipated Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission (FERC) this fall, the pipeline partnership will likely seek a writ of possession in federal court, said Michael Braunstein of Goldman & Braunstein LLC. The writ would allow NEXUS to exercise eminent domain and begin construction of a 36-inch natural gas pipeline on targeted private properties before paying the owners for easement rights.
If a writ of possession is approved, NEXUS would post bond with the court to ensure payment to property owners, although it may ultimately pay more or less than its deposit.
NEXUS, a partnership between Spectra Energy of Houston, Texas, and DTE Energy of Detroit, Mich., filed a request with FERC for the process, known as “quick-take.” It would affect property owners along the pipeline’s 208-mile Ohio route.
On behalf of 75 current clients, about 10 of whom reside in Fulton County, the law firm filed a motion Dec. 10 protesting the schedule described in NEXUS’ application for the FERC certificate, filed last November. Braunstein said with time he expects to represent about 150 Ohio property owners in this matter.
“Spectra is requesting that FERC grant it an accelerated schedule that will enable Spectra to immediately and permanently seize property and dispossess hundreds of Ohio families from their land without a meaningful opportunity to be heard and without payment of full compensation before their land is taken,” the motion states. “This is a fundamental violation of the rights guaranteed by both the U.S. Constitution and the Ohio Constitution.”
The motion further asserts “this extraordinary additional right” is usually reserved, under narrow circumstances, only for government use. It says under state and federal law NEXUS is not entitled to “quick-take,” and under the Ohio Constitution, specifically, the practice is denied to private entities.
According to the motion, the process turns property owners into “unwilling creditors,” since the bond filed by NEXUS wouldn’t guarantee fair compensation for the level of construction and property damage.
“(T)he same company that forces you to sell it rights to your property should not be able to unilaterally decide how much those rights are worth,” the motion states.
Braunstein said in some cases federal courts permit the practice if FERC deems it necessary. He said NEXUS is claiming the necessity in order to meet a self-imposed deadline to have the full 255-mile pipeline in operation by November of 2017.
“It’s a very unfair process to take people’s property without giving them a full opportunity to be heard in court,” he said.
FERC is in the business of approving pipelines and giving the companies certificates, Braunstein said. “We’re saying there is no emergency, don’t give (NEXUS) this pretext. They want to get it done, they want to get it done fast, and they don’t really care about the property rights of the people in the way.”
NEXUS spokesperson Arthur Diestel said the partnership does not comment on legal filings in detail. He did say the allegations in the law firm’s motion “are baseless and misleading…NEXUS continues to communicate with landowners to obtain voluntary survey access and easement agreements as the project works towards obtaining its FERC certificate later this year and commencing construction in 2017.”
Terry Lodge, a Toledo attorney representing area opponents of NEXUS, said the company likely would try to use FERC’s certificate to its advantage in federal court. He said NEXUS would probably argue that FERC’s overall approval of the pipeline project includes approval for an expedited timeline.
The company also would likely use the certificate to convince the remaining unsupportive landowners to concede, he said.
“It’s really psychological warfare,” Lodge said. “Property owners are going to be whipsawed in a situation where the company is saying…’It’s a done deal, and you need to become realistic and seal the deal.’ It’s another means of psychological pressure. It’s consent in the middle of rape.”
The motion Goldman and Braunstein has filed with FERC is a pre-emptive strike, asking to be included in whatever battle may ensue should NEXUS request “quick-take,” he said.
Although the procedure is illegal to private entities under Ohio’s constitution, it is possible. Historically, “quick-take” in the state has been almost entirely reserved for emergency public road construction. But there have been two cases in the U.S. involving pipelines – both in Ohio. One involved Spectra’s OPEN pipeline project in a southern district.
“Unfortunately, in Ohio it seems they’ll be able to convince a federal judge to do this,” Lodge said. He said the pipeline companies argue their projects are part of a national priority.
“The entire process is tilted toward ‘build,’” he said. “But this is a lot more than just a private investment commitment. This is screwing with people’s lives. Everything is so the company can better their project.”
According to FERC spokesperson Tamara Young-Allen, the agency’s approval of NEXUS’ certificate would include the right to eminent domain. She said it would be NEXUS’ choice to emphasize that aspect in court in order to obtain “quick-take.”
Braunstein said it’s probable FERC will delay NEXUS’ request, in part to consider the actions. But he said his firm can’t halt production.
“The pipeline’s going to be built. The whole natural policy of the U.S. is to build these pipelines. I’m confident I can get people a fair easement and just compensation. I cannot get it stopped. People need to be prepared for that, and need to be protected.”
David J. Coehrs can be reached at 419-335-2010.