Point of View

Fracking: the role of eminent domain

June 7, 2012 

There is much public debate, both nationally and in North Carolina, about the relative benefits and costs associated with the practice of “fracking” for natural gas. The public attention and debate is justified, not only because the negative impacts to human health and natural resources can be great, but also because those impacts are shielded by a number of exemptions from federal laws designed to protect public health and the environment.

Exemptions from laws governing safe drinking water, the disposal of hazardous waste, the use of toxic chemicals and the emission of harmful air pollutants should concern us all. However, one important issue has been ignored: the taking of private property rights under the exercise of “eminent domain” powers.

Fracking operations inject large volumes of water laced with toxic chemicals under high pressure to fracture rock deep underground to release natural gas. The practice is currently banned in North Carolina by two different laws: one that prohibits horizontal drilling underground (enacted to prevent unscrupulous entities from stealing the oil and other mineral resources of neighboring landowners), and one that prohibits the injection of chemicals underground (enacted to protect the integrity of aquifers and the safety of drinking water sources).

North Carolina law defines eminent domain as “the power to divest right, title or interest from the owner of property and vest it in the possessor of the power against the will of the owner upon the payment of just compensation for the right, title or interest divested.” Eminent domain typically is used by government entities for such purposes as building schools, roads, sidewalks, drinking water facilities, libraries, parks, and fire stations. This kind of infrastructure benefits the entire community and is controlled by governmental authorities that answer to the public and give opportunities for input to affected communities. Historically, eminent domain authority was also conveyed to regulated public utilities to create infrastructure that serves the common good.

Despite legal protections on the government’s exercise of the power of eminent domain, the taking of private property by a government entity is a sensitive and controversial issue, the subject of much political debate that frequently demands the attention of the courts. But what about the taking of private property by a private entity, such as a corporation? Shouldn’t that practice also be the subject of public debate and scrutiny?

Many citizens will be surprised to learn that North Carolina law authorizes private, for-profit corporations to take the property of private landowners for certain purposes. Relevant to the fracking debate is the authority of for-profit entities that build pipelines and mains to transport petroleum products, coal, gas, limestone or minerals to condemn private land. This means that private companies engaged in natural gas production within North Carolina may condemn any person’s land in order to lay pipes to transport natural gas from the production wells.

Currently, natural gas companies use this authority to distribute natural gas to customers. But the practice of extracting natural gas from shale deposits requires much more infrastructure to accomplish.

There are pipes that gather the extracted gas, pipes that convey the extracted gas to production facilities where the gas is cleaned, and pipes for transmitting the cleaned gas to compression stations before that gas ever reaches the smaller lines for distribution to individual residences and businesses.

If legislation currently being considered in the General Assembly is enacted into law, private companies engaged in the process of extracting, refining and transporting shale gas will have the authority to take private property for all of these pipelines – and they will not be held to the same standards of public involvement that governments must observe

The authority of companies engaged in shale gas extraction to take private property to convey the produced gas is clear. Less clear, however, is whether that authority also allows them to condemn land needed for other infrastructure necessary to support hydraulic fracking. For example, may companies condemn the land needed to pipe water to the fracking wells? What about pipes that may be needed to transport “produced water” (i.e., water recovered from the fracking process that is contaminated with chemicals used to fracture the shale)? Or land needed for the construction of the compressor stations?

And what of the wells and well pads themselves? If private companies engaged in these activities are designated as “public enterprises,” then they may be able to take private property for purposes far beyond that of laying pipelines.

The potential threats to drinking water, natural resources and public health from hydraulic fracturing are serious and, appropriately, are the primary focus of most of the public dialogue as North Carolina considers whether to lift the 50-year old prohibition on horizontal drilling and injection of toxic chemicals into underground drilling wells. But the rights of private landowners should also be considered and protected, especially when their property may be sacrificed to benefit someone else’s fracking operation. Landowners should be able to protect their property and local governments should have a say about impacts to their communities.

We should be wary about authorizing private corporations with the power of eminent domain to profit from the extraction of North Carolina’s precious natural resources.

Michelle B. Nowlin is supervising attorney and senior lecturing fellow at the Duke Environmental Law and Policy Clinic.

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