Avoiding Eminent Domain

Pipeline companies that receive a certificate from FERC to construct and operate a pipeline and have been unable to acquire property that is necessary for the project may exercise their power of eminent domain by bringing a condemnation action in federal court if the property is valued at $3,000.00 or more.    

Regardless of acreage, a property owner must be offered, and deny, a minimum of $3,000 before eminent domain may be used.  

Eminent domain (ED) is very complex.  Most courts have upheld a company’s right to proceed with condemnation (ED) even if the pipeline company has not yet complied with all conditions of the FERC certificate or obtained all necessary permits.   

However, in a recent case, known as “The Brandywine Five”, Ms. Carolyn Elefant, Esq. www.carolynelefant.com successfully represented five Chester County landowners in federal court opposing an eminent domain action.  “The Brandywine Five” decision to fight eminent domain was based on the lack of essential PA DEP permits.  The Judge denied a quick take (ED) by Williams Transco Pipeline in their Sentinel Project.  Within a year, the court acknowledged that The Brandywine Five's efforts were a success and awarded attorneys' fees.  

This was a fairly significant victory.  If  companies may be liable for fees, it  may deter them from jumping the gun and marching into court to get possession before they have approved permits.  It also shows that states can make a difference; here, the state's decision to hold the line on the water quality permits enabled The Brandywine Five to prevail.  

Federal court is a last resort; the county, state and landowners need to intervene and participate extensively in the FERC process to gain whatever leverage they can to ovoid Eminent Domain.