Blurring Necessity And Just Compensation – Pipeline Development Dilemma

As renewable energy increases, and with coal being phased out, landowners and environmental advocacy groups have begun to focus on pipeline development, concentrating on the "need" to account for downstream greenhouse gas emissions and pipeline developers' use of condemnation powers. For eminent domain, the argument includes that its application against landowners may be "improper", even raising constitutional claims once thought previously addressed. Such arguments have blurred the line between the public necessity of a pipeline project—the constitutional prerequisite for a valid taking—and the appropriate just compensation due a landowner. For natural gas pipelines and other pipelines subject to federal regulation, the pipeline company's eminent domain authority arises after the necessity determination (conditional or otherwise) by the Federal Energy Regulatory Commission ("FERC").¹ Thus, a landowner's rights are not "jeopardized." Instead, the landowner is,