Bernheim Arboretum and Research Forest and Louisville Gas and Electric offered closing arguments Wednesday in a hearing that will decide the utility’s right to take conservation lands to build a natural gas pipeline.
Each party now has two weeks to offer final written arguments before Bullitt County Circuit Court Judge Rodney Burress issues a decision.
“I would encourage all of you to keep talking,” Burress said Wednesday, suggesting the two parties negotiate a deal before his ruling.
LG&E wants to build a 12-mile-long natural gas pipeline that would cut through the Cedar Creek Wildlife Corridor. The utility says the pipeline is necessary to improve reliability and capacity in northern Bullitt County. Lawyers for Bernheim argue the pipeline could be routed elsewhere to avoid impacts to habitat for endangered and threatened species
At the crux of the case is whether Kentucky’s eminent domain law applies to conservation easements.
Bernheim Attorney Randy Strobo called for the case to be dismissed arguing the state’s eminent domain law applies only to private property and therefore, LG&E could not use it to seize lands that Berheim bought in conjunction with state funds.
“There is nothing in the Eminent Domain Act that gives LG&E the right to take public property,” Strobo said.
When Bernheim bought the Cedar Creek Wildlife Corridor back in 2018, a state conservation agency paid half the purchase price in exchange for a conservation easement that would protect the land’s natural areas.
That was enough for the Kentucky Court of Appeals panel, in a related case, to determine the state of Kentucky does indeed have a property interest in the 494 acres. But the panel also concluded that it doesn’t matter because of the way the Legislature wrote the state’s eminent domain law, which reads:
“A conservation easement… shall not operate to impair or restrict any right or power of eminent domain created by statute, and all such rights and powers shall be exercisable as if the conservation easement did not exist.”
The Court of Appeals found that if the conservation easement doesn’t exist, then the state’s ownership stake is “removed as an obstacle” when it comes to condemnation proceedings.
In court on Wednesday, Buress signaled that he agreed with the appeals court decision, and denied Bernheim’s motion to dismiss.
“Sovereign immunity does not exist for a conservation easement,” he said.
The hearing continued for another hour or so, but with the wind taken from the sails of Bernheim’s argument.
At one point during closing arguments, Burress threatened to hold the crowd in the gallery in contempt for an outburst of applause following a passionate speech from Kentucky Heritage Land Conservation Fund attorney Matthew Myers.
“No one has the right to take public land,” Myers said.
Monica Braun, an attorney for LG&E, argued that although the pipeline could have been routed elsewhere, it was the utility’s judgment that the path through Bernheim was the best for the business and ratepayers.
“This is one-tenth of 1%” of the more than 16,000 acres Bernheim owns, she said.
Several environmental advocates also attended the second day of the hearing, continuing to wear shirts opposing the pipeline’s construction. Ellen Wade, 73, said she came to court to support Bernheim and protest a pipeline that would further contribute to climate change.
“It sounds a little pessimistic on the judge’s part, but I’d still think there’s a slight chance on the appeal,” Wade said.
Bernheim Executive Director Mark Wourms said his attorneys offered strong arguments, and that Burress could still rule in their favor.
“We’re hopeful that he’ll see the light that this is the wrong project, the wrong time and the wrong place,” he said.
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