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Pipeline company could use eminent domain locally

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Kayla Bunge
July 25, 2008

The construction of 22 miles of crude oil pipeline continues along the eastern edge of Rock County despite a pending lawsuit filed by some Clinton Township farmers unhappy with the prospect of the pipeline company condemning their land.


“When they buy into a pipeline, they buy into trouble,” said Jon Erik Kingstad, a Minneapolis attorney who represents Gordon and Barbara Weidner and Kenneth and Mimi Book of Harvard, Ill. They own almost 200 acres of farmland along the proposed pipeline route.


Although the farmers would rather not have the pipeline cross their land, Kingstad said they’re willing to negotiate a fair price for an easement. He said eminent domain gives the pipeline company an unfair advantage.


The Wisconsin Public Service Commission in March granted Enbridge Energy Partners eminent domain authority. The company is extending two parallel pipelines from Superior to Patoka, Ill.


-- A 42-inch crude oil pipeline will carry crude oil from the Canadian oil sands near Edmonton, Alberta, south to Midwest refineries.


-- A 20-inch diluents line will carry light hydrocarbons used to dilute heavy crude oil north along the same route.


Construction on Stage 1, from Superior to Delavan, was completed April 1. Construction on Stage 2, from Delavan to Patoka, Ill., began June 1.


Right-of-way

According to documents filed with the Public Service Commission, Enbridge needed to acquire 158 acres of right-of-way in Rock County, including a 60-foot permanent right-of-way and a 90-foot temporary right-of-way.


The pipeline company negotiates easement agreements with landowners along the proposed pipeline route. The agreement covers things such as compensation, restoration of the land and restriction on future use of the land, said Enbridge spokesman Dave Henderson.


“We try to maintain pretty open communication (with landowners),” he said.


Although the Public Service Commission (and its Illinois equivalent) has given Enbridge the power to seize private property, the company only uses it as a last resort, Henderson said.


“We have that ability, but we really have not had to utilize it,” he said. “We try not to utilize it. We’d rather come to a mutually satisfactory agreement (with landowners).”


The sticking point for some landowners—including the Weidners and the Books—is money.


Henderson said landowners are compensated a fair market value for the permanent easement and a percentage of fair market value for the temporary easement.


But Kingstad said fair market value is a matter of opinion, one that differs between landowners and the pipeline company. If the pipeline company doesn’t want to pay a landowner what he thinks his land is worth, eminent domain allows the company to seize the land and negotiate compensation in court, he said.


“It’s a question of whether or not that’s fair bargaining,” Kingstad said.


Enbridge is a multi-billion-dollar company and can afford to pay landowners more money for the easements, he said.


“There’s no reason to go through eminent domain, here,” Kingstad said. “No reason for them to try to low-ball people.”


That’s why the Weidners and the Books filed a lawsuit seeking judicial review of the Public Service Commission decision in March to grant Enbridge eminent domain authority. The farmers allege the Public Service Commission erred in giving Enbridge that power because the company is not a corporation and it is not seeking easements for public use.


But Enbridge and the Public Service Commission say the farmers were given a chance to participate in a hearing before the Public Service Commission, but rather than intervene, they chose to testify at a public hearing. The farmers then requested to intervene five months past the deadline.


The Janesville Gazette was not able to reach Michael E. Newmark, attorney for the Public Service Commission, for comment.


Pipeline ‘stigma’

Kingstad said it’s not just the money that has the Weidners and the Books upset, it’s the “stigma” of having a pipeline on their farmland.


He said the threats a crude oil pipeline poses to the environment are dangerous and already have been documented along Stage 1 of the Enbridge pipeline.


The state Department of Natural Resources alleges Enbridge is responsible for more than 100 environmental violations and has asked the state Department of Justice to prosecute the company for damaging waterways and wetlands.


But Henderson said the pipeline company works to restore the land, and by the time the construction and restoration process is complete, there will be very little evidence of a pipeline.


“The land is restored as close as possible to the same contours it was before for the same use it had before,” he said. “Farmers could continue to farm over the pipeline.”


Henderson said construction crews follow best practices to prevent erosion, protect agricultural topsoil and repair agricultural drain tiles. Land restoration is monitored for at least five years following construction, he said.


That’s not to say Enbridge doesn’t deny environmental risks associated with a crude oil pipeline, but given the alternate means of transporting oil—truck, rail or ship—pipelines are much safer, Henderson said.


He said the company has measures in place to prevent oil spills, including coating the pipes with epoxy, applying a low-level electrical charge to prevent corrosion, maintaining low pressure in the pipes and regularly inspecting the pipes with computer equipment that can detect abnormal conditions.


“It would not be very likely that a given landowner would have a leak on his or her property,” Henderson said.


But Kingstad points to a number of spills along existing Enbridge pipelines in the last decade, including two recent spills in Wisconsin—one Jan. 1, 2007, in Clark County that released 50,000 gallons and another Feb. 2, 2007, in Rusk County that released 176,000 gallons.


“They’re called ‘hazardous liquid pipelines’ for a reason,” he said.


Construction of the pipeline in Rock County is expected to be complete by the end of the year.



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