The Ohio Attorney General’s Office defines eminent domain as “the power of the federal, state and local governments to take private property for public use.” Sanctioned by the U.S. Constitution’s Fifth Amendment and Article 1, Section 19, of the Ohio Constitution, private property may be taken in exchange for a just compensation.

Since Oct. 1, 1953, Ohio’s eminent domain provisions have been defined by Ohio Revised Code 1723.01 regarding “Power to enter upon or appropriate land.”

As it relates to oil and gas, state law says, “If a company is organized for the purpose of … transporting natural or artificial gas, petroleum … (or) for storing, transporting, or transmitting water, natural or artificial gas, petroleum, … then such company … may appropriate so much of such land, or any right or interest therein, as is deemed necessary for the laying down or building of such (infrastructure) … necessary to the purposes of such companies.”

Those provisions saw Ohio through development like the Marcellus and Utica shale drilling operations that began in the early 2010s, according to Dale Arnold, director of energy, utility and local government policy for the Ohio Farm Bureau Federation, whose role is to educate bureau members about energy-related issues.

Provisions were put to the test as interest in new pipeline infrastructure arose for the transportation of certain substances. Whether eminent domain applied for a desired pipeline route depended on what substance would be transferred, Arnold said. If it was a consumer fuel like crude oil or gasoline or propane — substances used by the public for transportation, heating or energy generation — those provisions applied.

Meanwhile, new focus on additional pipeline infrastructure arose in parts of Ohio, Kentucky and other places, Arnold said. Those lines carried natural gas liquids like ethane and butane, which are byproducts of natural gas processing and therefore are not direct consumer fuel derivatives, meaning eminent domain provisions didn’t apply.

“(These pipelines) still are going across the state, and farmers also found out they had a greater opportunity and responsibility to negotiate easements and other agreements accommodating those across the property,” Arnold said.

Ohio courts unanimously upheld these provisions despite challenges from major companies, Arnold said. However, something changed in Eastern Ohio that muddied the waters of interpretation, possibly setting the stage for eminent domain’s application toward future carbon and hydrogen pipeline construction.

In 2015, Sunoco Pipeline L.P. tried and failed to negotiate a voluntary easement agreement with Carol A. Teter, trustee of the Carol A. Teter Revocable Living Trust and owner of a 162-acre farm in Jewett. Part of the Mariner East 2 Pipeline project, the pipeline would transport pure butane and propane from processing plants in Scio and Jewett to Sunoco’s Marcus Hook Industrial Complex in Pennsylvania and Delaware.

Subsequently, Sunoco filed a request for appropriation to obtain easements for its pipeline to cross Teter’s property. Harrison County Common Pleas Court granted that request, leading Teter to appeal.

Contrary to Teter’s argument, Ohio’s Seventh District Court of Appeals concluded that petroleum is not defined in ORC 1723.01, but other sections of ORC and Ohio Administrative Code do indicate pure butane and propane are considered to be petroleum, and “the word ‘petroleum’ has taken on a technical or industry definition, which includes pure propane and pure butane.”

Also, the court concluded — in accordance with ORC 163.021(A), which requires corporations authorized by the government and seeking to use eminent domain prove the project is “necessary and for a public use” — that Sunoco’s pipeline was useful to the public, given that “some products containing Ohio propane and butane will return to Ohio,” and the path through Jeter’s property was reasonably convenient enough to justify a claim of necessity.

The Seventh District Court upheld the Harrison County decision, and Teter appealed the case again, this time to the state Supreme Court, where it is pending. Arnold noted this decision sticks in the Seventh District but not statewide, though it may be looked to as a precedent in future cases.

“When we took a look at this in 2016, we saw this and went, ‘Hmm, this is going to be interesting because this clear-cut determination that we had before … went from black and white to gray,” Arnold said of the case. “If and when we see pipeline development for other types of energy development projects come forward over the next several years or decade or so — and you’re seeing that now in 2024 — this particular discussion will come up, and it has.”

Arnold refers to recent interest in pipeline infrastructure for the transportation of condensed hydrogen and carbon dioxide for the purposes of underground sequestration.

Spurred on by environmental concerns and federal funding incentives, there is an increasing move globally toward developing and implementing technology for the capture of industrially produced carbon or hydrogen, followed by its temporary — or permanent — storage in injection wells.

Those facilities deposit captured materials in deep, porous geologic strata, which encapsulate the materials until they’re purposely re-surfaced. Some materials may remain underground indefinitely to prevent the carbon or hydrogen, both greenhouse gases, from entering the atmosphere. Locally, the integrated energy company Tenaska of Omaha, Neb., is pursuing voluntary land contracts for its proposed Tri-State CCS Hub, which would create 13 injection wells across Jefferson, Marshall, Hancock, Harrison, Carroll and Washington counties. 

Arnold said that whether eminent domain could be used for future hydrogen or carbon capture and sequestration pipelines in Ohio is “up for discussion and potential judicial debate.”

Recently in Iowa, the state utilities board unanimously approved Summit Carbon Solutions’ permit to construct, operate and maintain a CCS pipeline through 29 counties, claiming the project met Iowa Code requirements and its benefits “outweigh the private and public costs.” Meant by Summit to benefit the local ethanol industry, the five-state CCS project has been met with intense public backlash, with many raising safety concerns.

Kate Kimbell is a litigation managing partner with experience in landowner advocacy for Eques Law Group, which has eight Ohio offices, including one in Cadiz. Kimbell said there’s currently “no clear guidance” on eminent domain’s applicability for hydrogen or carbon pipelines in Ohio because it’s not yet been challenged in court.

However, she and Eques senior partner Thom White — who’s been representing landowners for nearly 15 years — agree that an argument could be made based on ORC 1723.01’s stipulation that the storage or transportation of “coal or its derivatives” may provide for land appropriation. The emphasis lies on “derivatives,” with hydrogen and carbon possibly meeting that standard based on how broad of a definition the court is willing to give.

A pipeline producer would also need to prove public use, White said, noting that simply keeping the carbon or hydrogen underground as “increasing storage capacity for a private business” wouldn’t meet that criterion. If the materials were to be used later as an industrial feed stock for a public utility, then that’s a different story.

“Economically, you’re not going to store these things … without the intention of bringing it back,” White said. “Then the question is, if you’re going to use that in order to justify eminent domain, what’s that use? Show us what you’re going to use it for.”

He added, “The definition of (public use) is in the eye of the beholder. The industry that’s going to be involved will say, ‘Look at how we’re going to be able to save these valuable carbon products and not just let them dissipate, pollute the environment, etc.’ There is a definite economic benefit — generally, that’s what they look at — an economic benefit to them and their shareholders is a public use.”