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Ticonderoga’s 21st Century Battleground: Taking Private Property in Vermont to Supply Natural Gas to the International Paper Mill in Ticonderoga, New York

Ticonderoga’s 21st Century Battleground: Taking Private Property in Vermont to Supply Natural Gas to the International Paper Mill in Ticonderoga, New York

This note revisits eminent domain jurisprudence as applied to a novel situation in Vermont: the taking of private property in Cornwall and Shoreham for the primary purpose of supplying natural gas to a corporate beneficiary across the lake in New York.  In March of 2012, International Paper (IP) contacted Vermont Gas Systems to inquire whether Vermont Gas would consider constructing additional natural gas pipeline through western Vermont, under Lake Champlain, to IP’s mill in Ticonderoga, NY.[1]  Despite opposition among impacted property owners in Cornwall and Shoreham,[2] this project is now moving forward as part of a larger natural gas pipeline expansion in Vermont’s Addison County.[3]  And should the Public Service Board approve the pipeline from VT to NY, Vermont Gas may have to acquire easements on private property through the power of eminent domain.[4] 

Two hours west of South Royalton in Addison County, Vermont Gas has proposed a new network of natural gas pipelines.  The project is titled the Addison Natural Gas Project and has two phases.[5]  The Vermont Public Service Board is currently reviewing Phase I, [6] which involves natural gas distribution to the Vergennes and Middlebury areas.[7]  The pipeline “extension”—starting in Middlebury, running through Cornwall and Shoreham, and ending in Ticonderoga—is “Phase II.”[8]  While Phase II initially focused on service to IP, Vermont Gas recently expanded the scope of Phase II to include the transmission of natural gas to various private residences in Cornwall and Shoreham.[9]  Vermont Gas will likely submit the Phase II proposal to the Public Service Board this fall.[10]

If the Public Service Board issues a Certificate of Public Good for Phase II, and Vermont Gas is not able to negotiate with private property owners impacted by and opposed to the Phase II pipeline construction, will the power of eminent domain enable Vermont Gas to condemn private property along the proposed pipeline route?  The Takings Clause of the U.S. Constitution reads, “nor shall private property be taken for public use, without just compensation.” The Vermont Constitution states, “[t]hat private property ought to be subservient to public uses when necessity requires it, nevertheless, whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.” The interpretation of the phrase “public use” has caused much debate. In light of both federal and Vermont interpretations, does the purpose behind Phase II satisfy the public use requirement of eminent domain? Under the Takings Clause of the Vermont Constitution, does “necessity require[]” the construction of the pipeline?  

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