2017 Q1

to have the integrity of their water supply secured in the event it is threatened by pollution from a spill.”  Id. at 77.  The Court’s mandate as to Section 3218.1 is stayed for 180 days in order to allow the General Assembly the opportunity to revise the provision to include DEP notification to private well owners.  If no action is taken by the General Assembly, then the entire provision will be stricken and the DEP will not be required to provide contamination notices to the owners of private or public water supplies.  4.  Storage Provisions Constitute a Private Taking by Private Corporations. Provided certain conditions are met, Section 3241 authorizes a private corporation to appropriate subterranean real property interests in order to store natural and manufactured gas.  The Court found that this section violates the Constitutions of both the United States and Pennsylvania for two primary reasons.  First, the application of this provision is not limited to public utilities and applies to all corporations that are “empowered to transport, sell, or store natural gas or manufactured gas in this Commonwealth.”  Id. at 85-86 (“Critically, then, Section 3241(a), by its terms, does not restrict the type of corporation eligible to take the subterranean lands of another property owner to only

corporations that meet these specific legislatively imposed conditions for them to qualify for classification as public utilities.”). Second, the Court found that the public is not the primary and paramount beneficiary from any takings under this provision.  Id. at 86 (“[Section 3241] advances the proposition that allowing such takings would somehow advance the development of infrastructure in the Commonwealth. Such a projected benefit is speculative, and, in any event, would be merely an incidental one and not the primary purpose for allowing these types of takings.”). 


Adam S. Ennis (724) 749-3180 adam.ennis@steptoe-johnson.com Southpointe, PA

Bridget D. Furbee (304) 933-8117 bridget.furbee@steptoe-johnson.com Bridgeport, WV


Denbury v. Texas Rice: Clarifying the Test for Common Carrier Status, Power of Eminent Domain By: Austin Brister

3. rejecting the appellate court’s “substantial public interest” test, and

On Friday, January 6, 2017, the Texas Supreme Court issued its long-awaited opinion in Denbury Green Pipeline–Texas, LLC v. Texas Rice Land Partners, Ltd. (“Texas Rice II”), [1] holding that: 1. Denbury’s evidence of a post-construction transportation agreement with an unaffiliated customer was relevant to the “reasonable probability test,”

4. holding that Denbury had “conclusively” established its qualification as a common carrier with the power of eminent domain.

The opinion provides clarity as to the test previously set forth in Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline–Texas, LLC (“Texas Rice I”), [2] and the types of evidence relevant to that determination.

2. rejecting a rule that the requisite intent must exist at the time the pipeline was contemplated,


G r o w t h T h r o u g h E d u c a t i o n - J a n u a r y / F e b r u a r y / M a r c h 2 0 1 7

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