A major element of President Donald Trump’s “energy dominance” agenda — building lots of new oil and gas pipelines — is on a collision course with another conservative priority: property rights.
Plans for pipelines will certainly see pushback from environmental groups. But Trump and the oil industry also face conservative challenges to pipeline companies’ use of government power to seize property from unwilling sellers, an authority known as eminent domain.
Farmers and property rights groups could slow or stop pipelines the energy industry says must be built for power-hungry data centers and massive export terminals along the Gulf Coast.
“I think a tsunami of pipelines is headed for landowners’ property rights,” said Rebekah Sale, executive director at the Property Rights and Pipeline Center, which works to end the use of eminent domain for the siting of oil and gas pipelines. “I can only think that it’s going to become more and more of an issue.”
Hostility toward eminent domain hasn’t yet hindered any of Trump’s favored energy projects — and New York officials advanced a major project last week. But red-state farmers’ anger about “eminent domain for private gain” has already stalled the pipeline for a major carbon dioxide sequestration project in the Midwest.
In court, conservative legal organizations are taking aim at practices pipeline companies have long used as part of their exercise of eminent domain. A conservative public interest law firm is currently asking the Supreme Court to take a case about how landowners are compensated when their land is taken.
And Robert Thomas, director of the property rights practice at the conservative Pacific Legal Foundation, said landowners seeking to chip away at eminent domain have a pretty good chance with the makeup of the current Supreme Court, where six of nine members are considered conservative.
“The court’s been very open, let’s put it that way, to property rights issues,” Thomas said in a phone interview. “Has it been confronted directly with business or energy versus property rights? Not yet. But I think the court is pretty principled about property rights.”
Fights about eminent domain for oil and gas pipelines can split the GOP coalition by driving farmers into the arms of national environmental groups. At the same time, they foster unlikely alliances among environmentalists and property rights conservatives.
“There’s a lot of common ground where, again, we’re on the same side as our environmental cousins on a lot of this stuff,” Thomas said.
Oil industry leaders say Trump’s energy agenda has a lot of appeal to rural voters, which could make the bitter pill of eminent domain go down a little easier in red states.
“President Trump’s pledge to unleash American energy and approve the pipelines needed to deliver those new supplies to lower energy prices are exactly the types of arguments rural landowners want to hear during pipeline eminent domain debates,” said Andy Black, CEO of the Liquid Energy Pipeline Association.
But property rights advocates say governments and corporations expecting to seize property for their projects commonly underestimate the antagonism they’ll face over eminent domain.
“My default assumption when any government program is announced that’s going to require eminent domain is it’s going to take a lot more time and a lot more litigation than you assume,” said Robert McNamara, deputy litigation director of the Institute for Justice, which litigates on behalf of landowners facing eminent domain seizures. “The government never adjusts itself to how difficult it actually is to steal stuff from people.”
Eminent domain is legal, even if it’s unpopular among many landowners. It’s mentioned in the Constitution, which says that in return, landowners should receive “just compensation.”
Amy Andryszak, CEO of the Interstate Natural Gas Association of America, which represents the operators of major gas transmission lines, said her organization’s members report going to court in less than 2 percent of land acquisition cases.
“It’s rarely used and when it is, it’s after all other options have been exhausted,” Andryszak said in an emailed statement.
And when opponents lose in court, the optics of big corporations taking land from farmers can still erode support for projects facing plenty of other obstacles.
“Having a really active land resistance movement has been part of every project that I’ve been involved in that they could get shut down,” said Chris Johns, a Texas lawyer who has represented landowners fighting pipeline companies.
‘Last resort’
Ten months into his first year back in power, Trump’s fossil fuel drive has already spurred oil and gas companies toward a pipeline construction boom.
The Federal Energy Regulatory Commission has more than 1,500 miles of new gas pipeline on its list of pending projects. That includes Kinder Morgan’s Mississippi Crossing Project, cutting 200 miles from Greenville, Mississippi, into Alabama.
Dallas-based Energy Transfer has announced plans for a 516-mile, $5.3 billion expansion of its Transwestern natural gas pipeline system from West Texas to Arizona. That project involves a new line to run alongside an existing pipe.
Kinder Morgan is also working with Phillips 66 on a proposal to transport gasoline and other fuels from the Texas Panhandle west to Phoenix and California. The Western Gateway pipeline would include new pipe from Texas to Arizona and reverse the flow of some existing pipes.
And Trump’s return paved the way for a revival of Williams Cos.’ 124-mile Constitution gas pipeline in eastern Pennsylvania and upstate New York. It was canceled in 2020 after years of sparring between Oklahoma-based Williams and New York state regulators. Opponents had seized on the company’s destruction of 200-year-old trees at a maple syrup farm in 2016 as a sign of pipeline developers’ disregard for landowners.
Last week, an expansion of Williams’ Transcontinental gas pipeline system leapt an important hurdle — approval from New York regulators — that had blocked it for years. Only three of the 24 miles of pipe to be added in the Northeast Supply Enhancement project are slated to be onshore. But Franklin Township, New Jersey, where those three miles would be located, remains a hotbed of opposition.
In a statement, Williams spokesperson Tom Droege said the company tries to avoid eminent domain when developing projects already deemed to be in the public interest.
“Williams pays fair market value for the impact on the land of any affected landowner,” Droege said. “It is Williams’ intent and desire to obtain all easements through negotiation and it considers the use of eminent domain as a last resort.”
Few, if any, of the major U.S. pipeline projects are close to being ready for construction. But if they’re built, new oil and gas pipelines would be laid almost entirely across other people’s land.
To get access to land, most pipeline companies rely on eminent domain, or the threat of it. That power is bestowed by federal and state governments, sometimes after an extended process and sometimes after doing little more than filling out a form.
Property owners get the land back, with restrictions on how it can be used once volatile chemicals are coursing through the ground. The pipeline boom of the late 2010s exposed several problems — lowball offers, scarce protections for landowners and a failure to restore land that was temporarily seized.
Many pipeline transactions go off without a hitch, but when developers exercise federal eminent domain, there’s no requirement for them to make fair offers for land and few consequences when they treat landowners poorly.
The White House didn’t respond to a question about whether resistance to eminent domain could interfere with Trump’s energy agenda.
But Trump has backed eminent domain in the past. He cheered a 2005 Supreme Court decision allowing its use for municipal redevelopment, telling Fox News he supported the decision “100 percent.”
As a casino developer in the 1990s, he backed a condemnation move by Atlantic City, New Jersey, that would have let him build a parking lot on land occupied by a woman’s home. A federal court ruled against the city’s claim in 1998.
But some conservatives who chafe at overbearing regulations also dislike eminent domain and oppose government bestowing that power on private companies for pipelines or other projects.
That’s the power Iowa-based Summit Carbon Solutions has sought in several Midwestern states in order to build a 2,000-mile carbon dioxide pipeline network to serve what was billed as the world’s largest CO2 transportation and storage project.
Bruce Rastetter, an agribusiness mogul and a top GOP donor, is developing the project, billed as vital to the future of corn-based ethanol as a fuel additive. Another backer is Harold Hamm, executive chair of Continental Resources and a Trump confidant.
But the plan has been swamped by a storm of protest in Republican farm states, primarily Iowa and South Dakota.
In Iowa, a 2023 poll foreshadowed trouble for the project when it found 78 percent of Iowans opposed companies getting eminent domain to build carbon capture pipelines across the state.
‘Actual free market’
GOP legislators in Iowa passed eminent domain legislation earlier this year designed to hinder the project, but it was vetoed by Republican Gov. Kim Reynolds in June. The project, though, had already suffered a crippling blow.
South Dakota Gov. Larry Rhoden (R) signed a bill in March banning the use of eminent domain to build carbon dioxide pipelines. That cut off Iowa — home of many ethanol plants — from North Dakota, where the carbon was to be injected underground. It’s an obstacle Summit has yet to overcome, but the company is reportedly looking at other routes and injection sites other than South Dakota.
The Midwest debate highlighted the unusual coalitions born of such fights. While opposition came from conservative red-state farmers, much of the organizing was done by the Sierra Club.
Lawyers say fighting eminent domain head-on is next to impossible. Even if landowners and their neighbors find themselves shocked that an oil or gas company can commandeer their property with minimal oversight, it’s still legal.
So most legal challenges focus on related issues, such as whether pipeline developers can take possession of property before they pay for it and what authority governments can confer.
McNamara and the Institute for Justice are asking the Supreme Court to overturn a federal appeals court ruling that a group of North Dakota ranchers must pay their own attorneys’ fees after successfully challenging what a gas company wanted to pay for their land.
In 2018, when WBI Energy told McNamara’s clients the company wanted to lay a new, 12-inch-wide natural gas line across their property, the ranchers didn’t fight the pipeline itself. They live in western North Dakota in the middle of the Bakken shale oil drilling zone. They’d already negotiated pipeline easements with oil companies, which did not have the power of eminent domain.
“So, there is an actual free market in these easements that tells you exactly what they’re worth in market value,” McNamara said.
But WBI, which is part of MDU Resources, didn’t want to pay that rate. Instead, the company calculated the value by doing appraisals of the land before and after pipeline construction and paying the difference. WBI declined to comment beyond its court filings.
After a judge allowed the ranchers to use market prices to show the value of their land, the two sides settled.
But they left to the courts whether the company should also have to pay the hundreds of thousands of dollars the ranchers had racked up in attorney fees. The trial judge said the company did. But the 8th Circuit U.S. Court of Appeals said it didn’t.
The legal question is whether state law or federal law should apply. North Dakota law says the company should pay. Federal law puts it on the landowners.
McNamara calls that an unfair burden for landowners that lets companies benefit from making lowball offers.
“It’s making them pay the cost of their own condemnation,” he said.
The Supreme Court is set to consider this week whether to take the case.
And property rights advocates are looking for other opportunities to challenge eminent domain practices.
Thomas at the Pacific Legal Foundation said lawyers there would like to find ways to stop pipelines from taking over land before paying landowners and also prevent pipeline personnel from coming onto people’s land for surveys and other activities before condemnation even begins.
“That power isn’t really delegated in the Natural Gas Act,” Thomas said. “And yet they get it. To me, that’s an issue.”
