NEXUS appeal puts eminent domain in the crosshairs

OBERLIN — Land was improperly seized to make way for the NEXUS pipeline, according to lawyers for the city of Oberlin. City Council voted Monday to pledge another $18,500 toward its ongoing legal battle over the natural gas line. The funds will go to attorney Carolyn Elefant, who has filed for a rehearing of a case against the Federal Energy Regulatory Commission in the U.S. Court of Appeals for the District of Columbia Circuit. The case could potentially go to the U.S. Supreme Court, according to Oberlin Law Director Jon Clark. The city first retained Elefant in January 2016 as its representative in proceedings that ultimately led to NEXUS' authorization. Now she will argue that the pipeline company's use of eminent domain to take land from residents and other communities along its 257-mile path was improper. Clark said there is a question about whether eminent domain — using the court system to force sale of private property — could be used, since NEXUS may serve markets in Canada. The Natural Gas Act applies differently when exports are involved, he said. The city's appeal will also focus on the safety of residents who live in the "impact zone" should there be an explosion, Clark said. Some on Reserve Avenue are within 50 feet of the pipeline. NEXUS' impact on the environment will also play a role in the appeal, he said. FERC must balance environmental interests when authorizing energy projects. Clark said the NEXUS pipeline carries fracked gas, "and as everyone knows, fracking is a contributor to global warming." The appeal is likely to take at least a year to reach oral arguments, Clark said. The NEXUS pipeline transports gas from eastern Ohio through Michigan. It does not extend into Canada. Oberlin's suit claims the project "lack(s) any discernible public benefits" and "the adverse effects on landowners and communities are not outweighed by public benefits and that no public use justifies the exercise of eminent domain." Opposing lawyers argued that the NEXUS pipeline is not an export facility but a domestic interstate pipeline, and that the project couldn't be halted because some gas may someday go to Canada. The pipeline has been in operation since late 2018. Oberlin Council President Linda Slocum said she hopes the continuing case will lead to regulations on further pipeline construction. "Our experience can benefit other groups filing similar lawsuits," she said. "There could be future gas lines proposed for Oberlin. We are protecting our local residents for the future." Contact Jason Hawk at (440) 329-7122 or news@lcnewspapers.com.