A panel of judges has been asked to determine whether pipeline companies authorized to seize land under eminent domain are subject to Louisiana’s open records laws even if they don’t receive tax dollars.
The issue is before the Louisiana 1st Circuit Court of Appeal after a Baton Rouge judge sided with the company building Bayou Bridge. Environmental and corporate lawyers made their cases before a three-judge panel Wednesday morning.
Bayou Bridge is a 163-mile crude oil pipeline being built between Lake Charles and St. James. Builders have said it should be operational by the end of the year.
The Center for Constitutional Rights has argued that because Energy Transfer Partners is allowed to expropriate private property to build the Bayou Bridge Pipeline, the public should be permitted to scrutinize its business in the same way that a government agency is subject to scrutiny if it seizes land.
“(Pipeline builders are) treated as a very different type of company. ... That’s a very weighty power they have been given,” said Pam Spees, an attorney for the Center for Constitutional Rights.
Her organization has requested company communications about federal, state and local politicians, documents concerning opposition to the pipeline and records related to LSU researchers who published studies used to pitch Bayou Bridge. All the documents relate in some way to the company’s attempts to expropriate land, Spees said.
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She said the Center for Constitutional Rights could work with the court to determine which documents fall under public records law but that she could make an argument for everything they’ve requested.
Spees compared the situation to a ruling last year in which the state supreme court ordered the Louisiana Society for the Prevention of Cruelty to Animals to turn over documents to the New Orleans Bulldog Society about how they determine which animals are to be euthanized.
Bayou Bridge attorney Jimmy Percy said the comparison is inappropriate. The LSPCA was contracting with the city of New Orleans to provide animal control — an essential service the government would otherwise have to provide itself.
The state’s relationship to oil and gas companies is different, he said.
Energy Transfer Partners argues that the petrochemical industry may use eminent domain because it is to the benefit of the whole state to bolster Louisiana's energy economy. However, Percy said, pipeline builders aren't taking on a function of government — Louisiana wouldn't be building state-owned oil and gas infrastructure if private industry wasn't doing it.
The arguments were heard by state appellate judges Mitchell Theriot, Allison Penzato and John Michael Guidry, who led the questioning of both sides.
Pipelines are a for-profit enterprise, and it’s not like public tax dollars are going to pay company salaries, Guidry observed.
All the more reason for scrutiny, Spees argued.
Because pipeline companies don’t have the financial entanglements that a contractor would have, Spees said, the public needs to be able to “shine a light” on their operations since the companies are allowed to seize land, a right usually reserved for the government.
Taking property under eminent domain is a serious issue that touches on the fundamental right to own property, Guidry said.
“How do you get a shield?” he asked Bayou Bridge’s attorney.
“It seems like it would be more important” for the public to see how nonelected entities are exercising expropriation.
Percy reiterated that oil and gas companies are not using public funds, and that it is in the public interest for private companies to be able to transport oil, as Bayou Bridge is designed to do.
Before closing, the two sides briefly sparred over whether or not the Center for Constitutional Rights had legal standing to bring the suit before the appellate court.
The panel took the arguments under advisement but issued no ruling Wednesday.
A separate eminent domain suit is playing out in St. Martin Parish, where specific landowners have argued that pipeline construction crews entered their property without permission or legal expropriation documents backed up by a judge. That suit is scheduled for trial Nov. 27.