The property rights disconnect

February 26th, 2017
By Shelley Robbins

This post originally appeared as a guest column on GoUpstate.com.

The siting of infrastructure is a tricky thing, as is the issue of “need” relative to the power of eminent domain. Typically, only a government entity such as the S.C. Department of Transportation, a sewer district or a school district is empowered with the right to use eminent domain to acquire land or right of way by court order from local citizenry who are unwilling to sell.

All infrastructure, by nature of its size, leaves its mark on our natural resources. Trees must be cleared, streams must be crossed, and habitat, wildlife corridors and riparian buffers shoulder the impact.

Generally such a project is local in nature, and details regarding the site, the route and the mitigation of environmental impacts can be negotiated and enforced locally. This is not the case, however, with interstate natural gas pipelines such as the 55-mile-long, 12-inch pipeline (with a 50 foot cleared right of way, as shown in the header photo) currently proposed to run from a compressor station in Moore, through southern Spartanburg County, down the length of Laurens County, across part of Newberry County and to another compressor station at Lake Greenwood.

This project, known as the Dominion Transco to Charleston pipeline, and others like it across the country are perfect examples of a significant disconnect between federal regulations and local control and impact.

Read more about the Dominion Pipeline

The federal government, through the Federal Energy Regulatory Commission (FERC), is empowered through the Natural Gas Act to approve pipeline construction, set rates for cost of service and grant for-profit pipeline companies the right to use eminent domain to force landowners to surrender property and property rights. Local county councils, the S.C. Legislature and the Public Service Commission have no say in this decision even though their constituents are greatly impacted. They are the ones whose property rights are violated, and they are the ones who ultimately pay the power bill that reflects the cost of infrastructure they have no control over.

Because natural gas can now be easily liquefied and exported via tanker, this federal overreach is completely inappropriate. Liquid petroleum products such as gasoline and diesel  — long easily exportable — are not treated the same way. For liquids, states may decide if eminent domain is an appropriate and necessary tool relative to the public benefit. States are given no similar consideration with interstate natural gas pipelines. This needs to change.

The Dominion pipeline here in the Upstate will impact 27 pine plantations and 181 residential parcels, and it will cross 73 streams. It will rip through sections of high-quality habitat in Spartanburg County identified as conservation focus areas by Upstate Forever. It will leave 4,380 collective feet — almost a mile — of stream bank without tree cover. It will disturb Cherokee sites of prehistoric, ethnographic, historic and traditional value, and the oversight protecting human remains and artifacts will be absolutely minimal. This is because FERC has decided that this project has “no significant impact.”

No significant impact? This is the disconnect between decisions made by bureaucrats in Washington, D.C., and the citizens of the Upstate.

In its cursory environmental assessment, FERC stated that “we conducted a site visit of the project route on Sept. 30, 2015.” Really? Did they walk all 55 miles? Did they see where the pipeline route will cross Jimmie’s Creek in that pretty little bend and then take out a hardwood stand loaded with beech trees right above it?

How about Ferguson Creek? The South Tyger River? The Enoree? Did they see each of the 181 residential sites impacted near Moore, Enoree and Clinton?
 
When Upstate Forever and the S.C. Environmental Law Project requested documentation of the need for this project from FERC under the Freedom of Information Act (FOIA), we were denied. When we FOIA’d a list of the impacted property owners, again we were denied. So FERC can make this
sweeping decision to approve this pipeline and grant Dominion eminent domain while denying scrutiny of the project by people who will be living with it in their backyards.

That is absolutely wrong.

What is the solution? Remove eminent domain authority from the picture. As with liquid products, give that decision to the individual states. Sometimes it
may be appropriate and other times not, but citizens should have local input and recourse.

I invite you to join me in calling on Congress to remedy this problem by treating natural gas and petroleum liquids the same. The next project just might be in your backyard.

Shelley Robbins is the Energy and State Policy Manager at Upstate Forever and can be reached at srobbins@upstateforever.org

Photo: Scott T. Hipp

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