Pipeline Rights vs Private Property Rights

The U.S. natural gas industry views private property with less reverence than it did when the shale gas revolution began 10 years ago.
Companies are chomping at the bit to build new pipelines that will move natural gas and natural gas liquids to profitable markets. However, building a single long-haul pipeline is a timely and costly endeavor that often requires working with hundreds of individual private property owners to create a right of way.

At the dawn of the shale gas revolution, private property was held as sacred by natural gas producers. A major reason why the shale gas revolution was stronger in the United States than in other countries, according to experts, was because the private ownership of subsurface rights in the United States provided an incentive to property owners to lease their land to natural gas producers. In Europe and other regions around the world, the national government often owns the mineral rights, which makes it harder for energy companies to negotiate contracts.


Government agencies, along with federal and state courts, are coming to the industry’s rescue in Pennsylvania and other states as they grant pipeline companies permission to seize private property through the use of eminent domain. Federal and state officials are zealously defending the rights of pipeline companies to confiscate private property to build pipelines, even when there is no public benefit to the property owners, like the Gerharts, whose land is being seized.
Regulators, at the request of pipeline companies, are classifying the proposed pipelines as in the “public interest,” and the courts are threatening private property owners with fines, prison time and even violence at the hands of federal marshals and state and local police if they refuse to allow pipeline companies access to their property.

A funny thing happened, though, when the industry started making plans to build new pipelines that would deliver the growing volumes of produced gas to markets where they could get top dollar. The industry often found private property rights stood in the way of their large-diameter pipelines through greenfield areas.

Battles are now occurring across the country as energy pipeline companies demand access to private property. In Pennsylvania, the conflict has become extremely tense between property owners on one side and the industry and the government on the other side. The latest confrontation occurred in Huntingdon County, Pa., in the central part of the state, where three people were arrested on March 29 on property owned by the Gerhart family.

The arrestees, whose preliminary court hearings are scheduled for May 11, were monitoring crews hired by Sunoco Logistics Partners LP who had arrived to cut trees on property owned by the Gerhart family. The company wants to clear a right of way for a pipeline that would transport natural gas liquids across the state for export at the Marcus Hook terminal near Philadelphia.

Since the first natural gas wells were drilled in the Marcellus Shale in the mid-2000s, the industry and its supporters have embraced private property rights and defended the rights of private property owners to lease their land — surface and subsurface rights — to natural gas producers. Any attempt to slow down the shale gas production rush was deemed a “taking” of economic resources from the landowners or an illegal confiscation of the property. But the sanctity of private property rights lost its appeal among state officials when it hindered the growth of the industry.

Government agencies, along with federal and state courts, are coming to the industry’s rescue in Pennsylvania and other states as they grant pipeline companies permission to seize private property through the use of eminent domain. Federal and state officials are zealously defending the rights of pipeline companies to confiscate private property to build pipelines, even when there is no public benefit to the property owners, like the Gerharts, whose land is being seized.

Regulators, at the request of pipeline companies, are classifying the proposed pipelines as in the “public interest,” and the courts are threatening private property owners with fines, prison time and even violence at the hands of federal marshals and state and local police if they refuse to allow pipeline companies access to their property.

On the Gerhart property, tree-cutting crews, protected by Huntingdon County sheriff’s deputies, were clearing a right of way for Sunoco Logistics’ proposed Mariner East II natural gas liquids pipeline. When they bought the land in 1982, the Gerhart family agreed to make the property part of Pennsylvania’s Forest Stewardship program, which gives tax breaks in exchange for not developing the land.

Similar to a confrontation earlier this year over the cutting of a swath of maple trees on private property in Susquehanna County, Pa., a judge issued an emergency injunction on March 28 to allow Sunoco Logistics to proceed with cutting trees on three acres of the Gerhart family’s land. Unlike the Huntingdon County confrontation, though, the tree-clearing in Susquehanna County for Constitution Pipeline Co. LLC’s proposed natural gas pipeline did not result in arrests of the property owners or their supporters.

The heated disputes between pipeline companies and landowners are likely to continue as the administration of Pennsylvania Gov. Tom Wolf, a Democrat, projects 30,000 miles of new pipe will be needed in the state over the next 10 years to handle the massive volumes of natural gas and liquids getting produced from the region’s shale gas fields.

Sunoco Logistics was pleased with its ability to clear the trees in Huntingdon County just before an April 1 tree-cutting moratorium took effect. The Indiana bat, recognized as an endangered species in Pennsylvania, is known to roost in this region of the state in the spring, so tree-cutting must occur by April 1.

“We were able to clear the vast majority of the right of way on that particular property, and our right of way remains on schedule. We completed the work we set out to do there,” Sunoco Logistics spokesman Jeff Shields said. “We haven’t had any other issues on the other 171 tracts we had cleared in Pennsylvania before that.”

Return of the Clear-Cutters
On April 7, the Gerharts were surprised to see that crews with chain saws had returned to their property to cut the remaining trees in the right of way that had not been cut by the March 31 deadline. In a statement, Sunoco said U.S. Forest Service regulations “also provide the process for tree-felling after March 31, which includes additional due diligence, such as the deployment of bat biologists to verify that bats are not present in any tree to be cut.”

Ellen Gerhart, one of the property owners, was arrested on April 7 for protesting the new round of tree-cutting on her property. Along with Elizabeth Glunt and Alex Lotorto, Gerhart also was one of the three people arrested on her property on March 29. Gerhart has decided to refuse bail and will stay in a county corrections facility until her preliminary hearing on April 20. She also has decided not to eat food until her hearing in protest of the authorities’ decision to side with Sunoco Logistics rather than protect the family’s private property from the company.

For the March 29 arrests, a Huntingdon County judge set bail at unusually high levels for Glunt and Lotorto, who face only misdemeanor charges. Glunt’s bail was set at $100,000, and she was released on bail on March 29. For Lotorto, who serves as shale gas program coordinator for the nonprofit Energy Justice Network, his bail was set at $200,000. Three days after his arrest, Lotorto was released from the county jail on April 1 without having to post bail. Lotorto said he refused to eat during his time in jail because he was not allowed to see a lawyer.

While in jail, Lotorto said he was in a cell next to an accused child molester whose bail was set at only $75,000. Lotorto said he faces up to 18 months in jail plus fines, even though he is unaware of any laws he broke. He contends he never entered the right of way where the crews were cutting trees on the Gerhart property.

Shields said Sunoco Logistics is adding new storage capacity at Marcus Hook facility to handle the increased volume of liquids once the Mariner East II project begins operations. The company hopes to begin construction on the Mariner East II pipeline this summer and complete the project in 2017, he said.

In Susquehanna County, the Constitution Pipeline, as an interstate pipeline, was certificated by the Federal Energy Regulatory Commission, while Mariner East II, as an intrastate pipeline, was granted public utility status by Pennsylvania Public Utility Commission.

“We had a federal judge that gave them eminent domain power,” said Megan Holleran, who lives in Susquehanna County and who tried to prevent crews from cutting down maple trees on her family’s property to clear a right of way for the Constitution Pipeline. “They had a county judge that gave them eminent domain power. Either way, no matter what we did to try to legally stop it, there was nothing we could do.”

Holleran and her family lost their battle against the developers of Constitution Pipeline, a 30-inch-diameter pipeline that would transport natural gas produced in Pennsylvania to customers in New York, New England and possibly eastern Canada.

The tree-cutting on the Holleran property took place in February, with heavily armed U.S. marshals guarding the crews cutting down the trees. Family members used the maple trees to make syrup for their company, called North Harford Maple. The maple syrup company, started by the family about six years ago, has tapped more than 300 trees that produce syrup that is sold at local stores and through an online business.

Property Rights Unite
Not every state is granting companies authorization to use eminent domain to build new pipelines. In Georgia, Kinder Morgan Inc. suspended work on its Palmetto petroleum products pipeline project following what it said was an “unfavorable action” by the Georgia Legislature regarding eminent domain authority and permitting restrictions for petroleum pipelines. The $1 billion pipeline would carry gasoline and diesel fuel from Belton, S.C., through Georgia to Jacksonville, Fla.

In March, the Georgia General Assembly passed legislation that would keep Kinder Morgan and other companies from seeking environmental permits or other licenses for petroleum pipelines until July 2017. “My constituents were up in arms,” Georgia state Rep. Bill Hitchens, a Republican, said in an interview with Inside Climate News . “It’s a conduit to pump petroleum from South Carolina into Florida. It doesn’t do anything for the state of Georgia.”

Hitchens, who sponsored the Georgia House of Representatives’ version of the bill, said he was concerned with threats to landowner rights. “Personal property rights are something that most people believe are as sacrosanct as all of the amendments to the Constitution,” he told Inside Climate News.

Property rights have become a unifying issue among people who are opposed to energy infrastructure that does not provide benefits to their communities, according to Holleran. “Anyone who owns private property wants to know they have control over it and that it’s not going to be taken just for someone else to make money. A lot of governments are starting to realize that if they allow these pipelines to cross their states, even if they don’t have fracking in their state, the pipeline doesn’t bring much benefit to the communities it goes through. All it is is a pipeline going across your land. You don’t get paid royalties off of it. The jobs are all outsourced.”

Holleran also believes there is no public need for many of the proposed pipelines because they would follow the same routes of existing pipelines that are owned by different companies. If it were only about transporting the natural gas to a region in need, the industry would be co-locating all new pipelines in existing corridors or it would be expanding existing lines rather than building entirely new pipelines, she said.

“But the companies won’t work together and that’s because this isn’t about transporting gas. This is about making money,” Holleran said. “We’ve already got so many pipelines in Pennsylvania.” .

Kirk A Bowers
Virginia Chapter, Sierra Club
Pipelines Program Manager
106 George Rogers Road
Charlottesville, VA 22911
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