Bernheim Forest appeals to Kentucky Supreme Court to stop pipeline in conservation easement

Republished from Kentucky Lantern


The Bernheim Forest and Arboretum is asking Kentucky’s highest court to take up a legal battle over condemnation of some of its land to build a gas pipeline.

In April, the Kentucky Court of Appeals affirmed a ruling last year from the Bullitt Circuit Court that said Louisville Gas and Electric and Kentucky Utilities (LG&E and KU) can exercise eminent domain to acquire land that is protected by conservation easements to build a natural gas pipeline.

Now, an attorney working on behalf of the research forest in a Monday filing is asking the Kentucky Supreme Court to reverse the appeals court decision. It’s the latest development in a years-long legal battle over LG&E and KU’s push to build a gas pipeline through a 494-acre wildlife corridor originally put into conservation through state-purchased easements that restrict development and require the property to be used as habitat for wildlife.

Environmental advocates have argued the ecological impacts haven’t been considered in developing the pipeline, while LG&E and KU representatives have argued the pipeline is needed for natural gas reliability. Louisville Public Media previously reported internal documents from the utility showed the gas pipeline would primarily benefit the Jim Beam distillery, though the chief operating officer for the utility has denied that.

In the Monday filing, an attorney for Bernheim Forest argued one of the reasons justices should take up the case is that the appeals court interpretation of the law could “extinguish” the existence of state-owned conservation easements. The Kentucky Land Heritage Conservation Fund, a state board that invests funding across Kentucky toward preserving land, originally helped purchase the property for the wildlife corridor.

Randal Strobo wrote in his filing that eminent domain use was limited to privately-owned lands and that publicly-owned conservation easements can’t “simply disappear when a party wishes to condemn the encumbered property without violating several constitutional limits on legislative acts.”

Only a small minority of requests made to the state Supreme Court to take up a case, known as a motion for discretionary review, are granted by justices.

In the April appeals court ruling, Judge Christopher McNeil wrote that some of the arguments made by research forest attorneys were previously rejected by the appeals court in a different case brought forward by the Kentucky Heritage Land Conservation Fund. McNeil wrote LG&E and KU can seize the land because Kentucky law doesn’t prevent land protected by conservation easements from being taken through eminent domain.

An LG&E and KU spokesperson in a statement last week said the utility was pleased with the appeals court decision that reinforces the utility’s plans “to enhance reliable natural gas service for customers and support continued growth and economic development within the region.”

A statement from Bernheim Forest in April said the nonprofit’s leaders were “obviously disappointed” with the appeals court decision. The more than 16,000-acre privately-owned research forest founded in the 20th century features an arboretum, educational programs and more than 40 miles of hiking trails.

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