By Ryan Van Velzer
September 9, 2021
permits necessary for construction, though several obstacles remain.
“LG&E will begin construction of the project once it obtains all remaining land rights currently in litigation; completes a competitive bidding process and selects a contractor to perform the work; and obtains any remaining minor authorizations required closer to construction,” said Natasha Collins, LG&E spokesperson.
The utility says the current pipeline has run out of capacity and a second pipeline is necessary to improve reliability and keep up with growth in the area around Mt. Washington, Shepherdsville, Clermont and Lebanon Junction.
The gas pipeline would cut through Bernheim Arboretum and Research Forest’s Cedar Grove Wildlife Corridor and several farms.
On it’s path, it would cross at least six major waterways impacting wetlands, sinkholes and habitat for more than a half-dozen threatened or endangered species, in addition to removing nearly 40 acres of forest, according to an LG&E stormwater pollution prevention plan.
The proposed path has sparked protests and advocacy campaigns, in addition to legal challenges.
Utility regulators first granted LG&E approval to build the pipeline in 2017, but the project has stalled amid a slew of pending permit approvals and lawsuits. Even with the major permits in hand, LG&E could still be years away from breaking ground on the project.
LG&E has ongoing litigation with Bernheim and the owners of seven tracts of land along the planned route, Collins said.
Bernheim Forest conservation director Andrew Berry said they’re committed to defending the conservation lands, which have deed restrictions that prevent development projects such as gas pipelines.
“The decisions that come from these cases will have long lasting implications for future protection of conservation easements and deed restrictions on natural lands,” Berry said. “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 Takes Land Using Eminent Domain
Back in May, a Bullitt County judge ruled LG&E could use eminent domain to seize property from landowners.
In that case, the landowners’ attorney argued his clients should not have to turn over their land when the true purpose of the pipeline is to serve a single customer, Beam Suntory — the makers of Jim Beam bourbon.
Internal LG&E projections produced during discovery in the case revealed Beam Suntory would receive nearly all of the additional gas load for at least five years.
Ultimately, Bullitt Circuit Court Judge Rodney Burress ruled in favor of LG&E allowing the company to seize lands from four groups of landowners. Buress said that while Beam Suntory would “benefit greatly” from the pipeline, the court found the project would also serve the broader public.
Remaining Court Challenges
On the permit side of things, Bernheim is challenging LG&E’s stream construction and water quality certification from the Kentucky’s Energy and Environment Cabinet. Bernheim is also challenging permissions from state utility regulators arguing the Public Service Commission acted unlawfully in approving the pipeline project.
In court, Bernheim is fighting LG&E’s condemnation efforts with cases in Bullitt Circuit Court and the Kentucky Court of Appeals, Berry said.
LG&E also has to sue two other parties to condemn the lands on the Cedar Grove Wildlife Corridor. That’s because Bernheim bought the conservation lands with funds from both the U.S. Fish and Wildlife’s Imperiled Bat Conservation Fund and the Kentucky Heritage Land Conservation Fund. Those funds came with a conservation easement that limits how Bernheim can use the land (i.e., not for gas pipelines).
Not only is LG&E having to sue Bernheim, but it also has to sue the U.S. Fish and Wildlife Service and the Kentucky Heritage Land Conservation Fund.
The U.S. Fish and Wildlife case is currently on hold in federal court pending other rulings. Meanwhile, attorneys with the Kentucky Heritage Land Conservation Fund have argued the case should be dismissed because LG&E doesn’t have the right to condemn the conservation lands, Berry said.