Last week, Annie Kuster (D-NH) along with four other Democratic members of Congress introduced a proposed Natural Gas Act (NGA) amendment aimed at banning the use of eminent domain for construction or expansion of interstate natural gas pipeline infrastructure through lands subject to conservation restrictions in favor of, or owned by, non-profit entities or local governments. The proposed legislation is “The Protecting Our Conserved Lands Act of 2019.”
If enacted, the bill would prohibit NGA condemnation of lands that: (1) are subject to a “conservation easement or other conservation-related restriction” in favor of a 501(c)(3) non-profit entity, or a municipality, county or other division of local government, or (2) that are owned by or deeded to any such non-profit entity or locality “for the purpose of conservation.”
No mechanism to avoid adverse impacts of forced re-routes.
In a press release, Kuster said she intended her bill to give non-profit entities and local governments the power to veto proposed interstate pipeline projects through any of the specified conservation lands and “compel pipeline companies to either negotiate a mutually agreeable solution or redirect their routes to less environmentally-sensitive paths . . . .” The bill, however, doesn’t account for or mitigate any adverse environmental and other impacts of forced re-routes around any of the designated “conservation” lands. This could lead to worse outcomes where the only viable project path alternatives are through other sensitive areas, such as wetlands or waterbodies and densely populated lands.
Potentially ambiguous language.
The bill also fails to define key terms, such as “conservation easement,” “conservation-related restriction” or “conservation purposes.” Courts would likely have to flesh out the meaning of those open-ended terms after years of costly litigation.
Potential for abuse with little conservation benefit.
The absence of any defined terms for the required conservation easements or restrictions also means that landowners and anti-pipeline non-profits could possibly impede a pipeline project across their lands by creating illusory, short-term or revocable conservation restrictions. Such sham restrictions could provide no legitimate conservation benefits and serve only to interfere with pipeline infrastructure projects. The restrictions could be easily lifted by the landowner after forcing a re-route or an exorbitant settlement with a pipeline company.
Possible Connection to PennEast?
Kuster’s press release also suggests a possible connection with the PennEast Pipeline project through New Jersey and Pennsylvania. She stated that some “2000 acres of state land” could be used for the project “if we do nothing.” But her bill only covers conservation-related lands owned by or subject to restrictions in favor of non-profit entities or localities—not state-owned lands. Additionally, in September, the US Court of Appeals for the Third Circuit ruled that the Eleventh Amendment prevents condemnation of state-owned lands along the PennEast project path. The pipeline company’s petition for rehearing of that decision was denied earlier this week.
Kuster’s bill, if enacted, could potentially force pipeline projects to steer around thousands of acres of lands subject to conservation restrictions without accounting for the adverse impacts of any resulting re-routes. The bill’s vague language is also ripe for abuse, possibly allowing landowners to impede projects or extract inflated settlements with sham restrictions that could be removed at any time. Moreover, the lands potentially rendered off-limits for pipeline projects would include not only the “conservation” parcels vaguely defined in Kuster’s bill, but also thousands of additional acres of state-owned lands—unless the Third Circuit’s PennEast ruling is eventually appealed to and reversed by the Supreme Court.