Cindi Ross Scoppe

Scoppe: SC bill would protect your right to not sell your property

A petroleum pipeline could cross the river at this Aiken County boat landing near Jackson if landowners agree to sell — or if the company can force them to sell.
A petroleum pipeline could cross the river at this Aiken County boat landing near Jackson if landowners agree to sell — or if the company can force them to sell. tdominick@thestate.com

I UNDERSTAND why Kinder Morgan would want the right to use eminent domain to build a petroleum pipeline through South Carolina. It’s the same reason a builder would want the power to force property owners to sell him land for a new subdivision. It’s the same reason an auto manufacturer would want the power to force suppliers to sell it the raw materials it needs. Heck, it’s the same reason I’d love to have the power to force a dealer to sell me the car I want.

Except it wouldn’t occur to most businesses or individuals to even dream of having such a power. We’d sooner fantasize about being able to leap tall buildings and see through walls. Because eminent domain is just too powerful to imagine. It legally forces someone to sell something, which strips the seller of any power to set the price. Even if the buyer still has to get a court to approve the price it sets, the owner is stripped of the right to bargain.

What I can’t understand is why anyone other than Kinder Morgan would think the Houston energy giant should be allowed to force property owners to sell their land or the right-of-way to their land. (Company officials say they would negotiate in good faith, but they have made it clear that they would use eminent domain if necessary to force owners to sell.)

What I can’t understand is why anyone other than Kinder Morgan would object to a bill that clarifies what the attorney general says is already our law. The bill says the only companies that can borrow the state’s power to force people to sell their land are those regulated by the state to serve the public interest, because, well, they’re regulated by the state, and they have been found to serve the public interest. It’s a bill that anyone who actually supports our free-market economy would have to consider an absolute minimum protection of the rights of homeowners and other property owners.

The S.C. Chamber of Commerce warns in its weekly newsletters that S.868 “sets a precedent for singling out a specific industry sector and has the potential to limit future energy infrastructure development in South Carolina.” I guess that sounds good if for some bizarre reason you want to give this one business power over every other business in the state, but when you stack it up against what the law and the bill actually say, it’s nonsensical.

Current law allows “pipeline companies” to exercise the power of eminent domain. The law probably is not as straightforward or all-inclusive as it sounds. But regardless of whether “pipeline companies” means all pipeline companies or just certain types of pipeline companies, this law is already “singling out a specific industry sector.” So there’s no precedent to be set by clarifying which pipeline companies that law singles out.

Frankly, I would be OK with eliminating that singling out — by stripping all businesses of the right to tell me I have to sell them my property, and instead limiting that power to our duly elected governments. But I recognize that it could get unwieldy if, say, SCE&G had to get a county council or city council to intervene on its behalf every time it needed to run a power line over someone’s property. So I can live with lending this power to regulated monopolies.

Now, let’s get back to that not-so-clear law. S.C. Solicitor General Bob Cook has concluded that the “pipelines” in question are natural gas pipelines, not petroleum pipelines. (It’s an odd-sounding distinction that is in fact based in both law and history.) He also notes that the state constitution doesn’t even allow governments to use eminent domain to benefit private companies that are not serving a “public use.” It seems clear that someone other than Kinder Morgan would need to determine whether Kinder Morgan is serving a “public use,” but it would be challenging to make that claim, since the company would be shipping petroleum out of our state, not into it.

The problem is that as sound as Mr. Cook’s opinions are, the question of what “pipeline company” means hasn’t been settled by a court. So if Kinder Morgan starts trying to make people sell their land, the only way to stop it is for the property owners to spend their time and money filing and fighting a lawsuit — which they shouldn’t have to do. So S.868 proposes to make it clear that the law has the limitations that Mr. Cook outlined in his opinion. If it becomes law — it has passed the Senate but is in a House committee that has not acted on a similar House bill since its introduction in June — it will make it clear that the only way Kinder Morgan can buy or borrow your land is by negotiating with you. Just like anyone else has to do.

That’s not singling out petroleum pipeline companies. It’s treating them the same as all businesses in South Carolina except for regulated utilities. Those companies would remain singled out for special privileges, but not of the sort that the chamber finds objectionable.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.

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