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Bernheim Under Threat Update: September 8, 2021

By Andrew Berry

Where do things stand now in Bernheim’s fight to prevent the pipeline from running through conservation lands?
Bernheim is still under threat from a proposed Louisville Gas and Electric (LG&E) natural gas pipeline in Bullitt County. LG&E has sued Bernheim for condemnation to build a portion of the 12-mile pipeline that would, at last estimate, cost LG&E ratepayers at least $74 million to build, almost $50 million more than originally disclosed to the Public Service Commission.

The pipeline route would cross Bernheim’s Cedar Grove Wildlife Corridor, which is subject to a state-held conservation easement and federal deed restrictions that are intended to ensure protection of forests, wildlife, and water resources.

Thus far, our efforts to protect Bernheim property, along with the Kentucky Heritage Land Conservation Fund (KHLCF) Board, has us defending against LG&Es condemnation efforts in Bullitt Circuit Court and the Kentucky Court of Appeals. The KHLCF Board has sought to have the condemnation case dismissed, claiming LG&E does not have the right to condemn this property or sue the state. Also related is LG&E’s case against US Fish and Wildlife Service in the US Circuit Court, now on hold pending rulings in other cases.

Bernheim has challenged the new Water Quality Certification issued by KY Division of Water for its failure to evaluate impacts to waters in Bernheim. Bernheim has also challenged the issuance of a state-issued Stream Construction Permit and the renewals of that Permit. Those cases are currently pending.

Bernheim challenged the Certificate of Public Convenience and Necessity (CPCN) granted by the Public Service Commission (PSC), claiming the Commission acted unlawfully when it granted a CPCN for the gas pipeline without receiving an application from LG&E for the CPCN. This case is currently pending in the Kentucky Court of Appeals. We are currently reviewing the Army Corps approvals and jurisdictional determinations.

What happens next?
Bernheim will continue to defend against LG&E’s condemnation lawsuit for the proposed LG&E pipeline.

We have an upcoming evidentiary hearing with the KY Division of Water in November related to Water Quality Certification and Stream Construction Permit.

We are awaiting rulings in the KY Court of Appeals and for the KY Heritage Land Conservation Fund sovereign immunity case and Public Service Commission challenge.

 

Have the recent losses led to a change in thinking or strategy from Bernheim?
Though the courts have ruled in favor of LG&E on other cases relating to the pipeline recently, Bernheim has not changed our thinking or strategy in the fight against the pipeline. We remain committed to defending the conservation easement and deed restrictions that we agreed to when we protected the Cedar Grove Wildlife Corridor.

New information has come to light that LG&E grossly underestimated its cost for construction. The cost was originally stated at below $25 million, but the projected cost has now risen to over $74 million with additional increases likely. LG&E will likely seek authority from the Public Service Commission to recover these increased costs from LG&E customers.

At stake are 71 stream crossings, 6,271 linear feet of stream impacted, and several springs and wetlands to be destroyed or damaged during construction. Comments to KY Department of Water submitted in late 2020 outlined concerns for water quality, particularly regarding the route being unstable with active landslides and slips that threaten streams and pipeline failure, a site for hydrostatic wastewater discharge on Bernheim land, impacts to undocumented springs and karst habitats, permanent impacts from sediment, and the permanent loss of forest cover that protects and regulates water. These issues threaten to become long-lasting impacts if this pipeline were allowed.

The decisions that come from these cases will have long lasting implications for future protection of conservation easements and deed restrictions on natural lands. They will also have long-lasting impacts on our environment, as we are now at a critical period where new infrastructure and energy solutions should minimize impacts to biodiversity and climate change. LG&E has alternative routes available to route the proposed pipeline yet rejected those alternatives and the advice of its consultant to avoid encroaching on Bernheim property.

 

How can I help?
The legal defense of Bernheim’s protected land is funded by private donations. 100% of Bernheim memberships and donations go to support Bernheim’s mission.

 

 

You can also help us continue to protect our environment by donating to our Land Protection Fund, which helps cover our legal expenses and more. For more information, please contact Cadell Walker via email or by calling (502) 215-7137

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