August 15th, 2020 — By — In Articles

Natural Gas Pipeline Easements: An Overview of the Takings Jurisprudence by Andrew Brigham

Although the eminent domain power is an attribute of the sovereign, there are instances in which a private licensee is delegated the power for the acquisition of easements necessary to establish a lineal corridor. For the purposes of this article, our examination of the jurisprudence associated with the acquisition of lineal corridor rights takes place in the “laboratory” of the federal district courts in Florida. For it is there that a new interstate pipeline project, known as the Sabal Trail Natural Gas Pipeline, resulted in the filing of approximately 263 condemnation cases for a lineal corridor of some 247 miles needed to construct a thirty-six-inch-diameter pipeline capable of transmitting up to one billion cubic feet of natural gas a day.

In review of these cases, some of which are yet pending appeals before the Eleventh Circuit, we are able to observe how private property rights are regarded when it is a private company wielding the eminent domain power to acquire easement rights, which make servient the estates of owners to a use of property that purportedly diminishes the value of their remainder property due to fear or stigma. Likewise, because some of these cases actually proceeded to jury trial on the measure of compensation, a rare look is afforded as to exactly how, as gatekeeper, a trial judge must often balance between admitting evidence that furthers the owner’s entitlement to a measure of compensation, which includes loss or severance damages resulting from fear or stigma, but preclude evidence where under Federal Rule of Evidence 403 the probative value is outweighed by unfair prejudice or jury confusion. Within this context, evidence as to the existence of fear or stigma is relevant and admissible, while evidence as to the reasonableness of fear or stigma is irrelevant and inadmissible. Topics discussed in this article include:

(a)  the progression of federal courts in condemnation cases under the Natural Gas Act to grant “immediate possession” in lieu of a delegated “quick-take” power;

(b)  the federal courts’ application of state law instead of federal law as the choice of law that controls the measure of compensation;

(c)  the federal courts’ decision to use jury trials instead of commission trials to determine the measure of compensation;

(d)  the condemnor’s use of Daubert challenges to exclude or limit testimony and evidence that is related to severance damages resulting from fear or stigma;

(e)  the condemnor’s objection to the testimony of the property owner as to the quantification of severance damages resulting from fear or stigma;

(f)  whether jury trials result in a “fair” and “just” determination of the measure of compensation.

To read this article in full please refer to the Brigham Kanner Property Rights Journal, [Vol. 8:121]

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