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Eminent domain bills could affect Jordan Cove

Oregon’s U.S. senators will introduce bills next month to restrict the use of eminent domain by gas pipeline companies to force landowners to sell easements for pipeline routes. The measures probably have little chance of passage in the Republican-controlled Senate, but the sentiment behind them ought to appeal to conservatives and anyone else concerned about preserving private property rights.

The bills by Democratic Sens. Ron Wyden and Jeff Merkley could affect the Canadian company Pembina’s proposed pipeline across Southern Oregon to deliver gas to a liquefied natural gas export facility near Coos Bay. Some property owners along the proposed route are resisting offers from Pembina to buy easements across their land, although Pembina says it has secured voluntary easements along 77% of the route.

Eminent domain is the power of government to take private property for public use, which has been upheld by the Supreme Court since 1876. The Fifth Amendment of the U.S. Constitution requires the property owner to receive “just compensation” for their land, which the courts have determined to be fair market value.

“Public use” and, by extension, public benefit, are the justification for this heavy-handed exercise of governmental power. In the early years of this country’s existence, eminent domain secured property to build water systems, roads, public buildings and other necessities of modern life.

In 1938, Congress enacted the Natural Gas Act, which declared that gas pipelines were by definition a public use. This made sense when the gas being piped was to be distributed to homes and businesses in this country.

In the case of the Jordan Cove LNG project, however, the gas would be exported to markets overseas. The only benefit to the public here would be temporary construction jobs, a handful of permanent jobs and some tax revenue. The profits would go to a Canadian company exporting Canadian and U.S. gas.

The Federal Energy Regulatory Commission, which has the final say over pipeline projects, has approved the Jordan Cove project, provided the company secures all needed state permits, which it has been unable to do because of environmental concerns. FERC did say Pembina could start eminent domain proceedings, although the company has insisted that would be a last resort.

Wyden’s and Merkley’s bills could take away that option.

Wyden’s bill would end the legal presumption that gas exports are in the public interest, standardize communications with landowners, restrict eminent domain claims and strengthen landowners’ appeal rights. Merkley’s bill would ban eminent domain claims entirely for companies building pipelines for export.

Protection of private property rights against government intrusion has long been a favorite cause of Republicans, especially in the West, where huge swaths of land are controlled by the federal government. In the case of pipeline projects, that philosophy conflicts with the GOP’s traditional support for private industry. And the Trump administration has made approving pipeline projects a top priority. At the same time, labor unions that back Democrats for office tend to support pipeline projects because of the jobs they create, while environmental groups that also back Democrats staunchly oppose pipelines.

It will be interesting to see which way those conflicts get resolved.