Texas Common Carriers May Soon Be Running In Circles

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1 Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY Phone: Fax: Texas Common Carriers May Soon Be Running In Circles Law360, New York (March 05, 2015, 10:32 AM ET) -- On Feb. 12, 2015, the Beaumont Court of Appeals in Texas Rice Land Partners Ltd. et al v. Denbury Green Pipeline-Texas LLC, No CV (referred to in this article as Denbury II) reversed and remanded a district court judgment granting summary judgment in favor of Denbury that its Green Line pipeline is a common carrier with the power of eminent domain. This represents the latest step in the legal saga that has already significantly changed the dynamics of establishing common carrier status in Texas for purposes of providing pipelines with the power of eminent domain under Chapter 111 of the Texas Natural Resources Code. The Beaumont court s most recent opinion creates an additional, even higher standard that pipelines must demonstrate when their common carrier status is challenged. In fact, under this most recent opinion there may be no Dane McKaughan amount of evidence sufficient to warrant summary judgment on the question of whether a pipeline is a common carrier, requiring potentially every landowner suit to either settle or go to trial. Denbury I Establishes a New Standard for Common Carriers To understand the implications of the Beaumont court s opinion, one must first look to the preceding opinion by the Texas Supreme Court. In 2012, the Texas Supreme Court sent shockwaves throughout the pipeline industry when it reversed a summary judgment that Denbury was a common carrier under Tex. Nat. Res. Code (6) with the power of eminent domain. Prior to this opinion, the common carrier self-designation by a pipeline filed with the Railroad Commission of Texas on its Form T-4 along with the filing of a tariff largely sufficed as a matter of law to authorize a pipeline to condemn private property. See, e.g., Vardeman v. Mustang Pipeline Co., 51 S.W.3d 308, 313 (Tex. App. Tyler 2001, pet. denied). In Texas Rice Land Partners Ltd. v. Denbury Green Pipeline-Texas LLC, 363 S.W.3d 192 (Tex. 2012) (referred to in this article as Denbury I ), the Texas Supreme Court reinterpreted the statutory definition of common carrier to create a higher evidentiary burden that a pipeline must show once its assertion of eminent domain is challenged by a landowner. The Denbury I court held: For a person intending to build a CO2 pipeline to qualify as a common carrier under Section (6), a reasonable probability must exist that a pipeline will at some point after construction serve the public by transporting gas for one or more customers who will either retain ownership of the gas or sell it to parties other than the carrier.

2 After establishing this new standard, the Texas Supreme Court reviewed the summary judgment evidence. This included the Form T-4 and the filed tariff, along with testimony that Denbury transported CO2 to the West Hastings oil field owned by its affiliate Denbury Offshore and that there was a possibility that Denbury would transport other entities CO2 in the future. The court found this evidence insufficient to establish as a matter of law a reasonable probability that such transportation would occur after construction. Thus the Texas Supreme Court reversed summary judgment and remanded the issue to the trial court for additional proceedings. On remand Denbury put forth additional evidence of its common carrier status, including evidence that in 2013 it contracted with a third party, Airgas Carbonic Inc., to transport CO2 for hire on the pipeline. Denbury further testified that it intended the Green Line to run close to the Texas oil fields so that CO2 emitters in those fields could capture those emissions and ship them to market on the pipeline. Denbury also presented evidence that it transported CO2 to the West Hastings Unit to support oil field operations there, and that although the West Hastings Unit was primarily owned by its affiliate Denbury Offshore, third parties, including Exxon Mobil Corp., held minority ownership (approximately 9.7 percent) and paid their share of transportation fees. Based on this additional evidence, along with the Form T-4 filed with the Railroad Commission declaring the pipeline a common carrier and the filed tariff, the trial court again granted Denbury s summary judgment motion. Denbury II Creates Significant Additional Burdens On Common Carriers In reversing the trial court s grant of summary judgment, the Beaumont court in Denbury II cites the same holding from Denbury I repeated above, but treats it as a mere starting point in evaluating whether a material fact exists that the pipeline is a common carrier.[1] The court emphasizes the phrase intending to build in the Supreme Court s holding, and based on that emphasis requires that the evidence of reasonable probability must exist at the time the pipeline is first conceived rather than after its construction when it is available for commercial use. Thus the court ignores for purposes of its reasonable probability analysis the fact that Denbury actually transports gas for hire under the Airgas contract. The Beaumont court next rejects Denbury s evidence that it sited the line with the intent to transport CO2 from the Texas oil fields. The court cites Coastal States Gas Producing Co. v. Pate, 309 S.W.2d 828 (Tex. 1958) for the proposition that property is taken for public use only when there results to the public some definite right or use in the business or undertaking to which the property is devoted. The emphasis on the term definite is the court s. The court rejects Denbury s testimony evidence, stating its subjective beliefs about what it anticipated and who might use the Green Line are mere conclusions and are not competent summary judgment. In fact, the court cites unrelated cases for the propositions that issues of knowledge and intent are rarely appropriate for summary judgment, and only when reasonable minds cannot differ does the issue of intent become a question of law; otherwise, intent is a question of fact for the jury s determination. [2] Finally, the Beaumont court rejects the summary judgment evidence that the CO2 transported to the West Hastings Unit also benefited third parties such as Exxon Mobil because of their minority ownership in the oil operations there. In doing so, the Beaumont court finds significant that Denbury Onshore owns the controlling interest in the West Hastings Unit and that Exxon Mobil pays only a 9.7 percent interest in the transportation and production costs.[3]

3 Denbury II's Reasoning Appears Flawed Somehow the Beaumont court in interpreting a standard requiring a reasonable probability that a pipeline will serve one or more customers after construction finds that a pipeline seeking common carrier status must show a definite use by third parties at the time it first intends to build the line, regardless of whether the line is in fact subsequently used to serve parties other than the carrier. The legal basis for this interpretation does not appear to withstand scrutiny. Additionally, this new standard for summary judgment, if upheld, creates a virtually impossible standard for a pipeline to meet. The Beaumont court s common carrier legal analysis becomes problematic when it seeks to add to the Texas Supreme Court s holding in Denbury I an additional test that pipelines demonstrate a public use by showing a definite right or use by the public. The court imputes this standard from the Texas Supreme Court s 1958 decision in Pate. But the Pate court does not hold that public use requires a definite right or use. In fact, the Pate court cites that statement from a prior 1905 case and then distinguishes it.[4] As explained in Pate, Coastal States had a lease from the Texas Legislature to develop mineral assets within a state-owned riverbed which granted the lessee condemnation authority, and it sought to condemn property adjacent to the river to support the drilling efforts. The court in Pate distinguishes the definite use language stating property condemned and used by the state itself for the development of its mineral resources clearly would be put to a public use, and we do not believe that a different rule can be applied to the State s lessee under the facts of this case. The Pate court concludes that so long as the operator complies with the terms, spirit and purpose of the lease from the Legislature granting the power of eminent domain, its activities are by definition a public use. Although Denbury does not hold a specific lease from the Legislature, the Legislature has expressly declared in Texas Natural Resources Code Section that the operation of common carriers is a business in which the public is interested. Thus, to the extent a business meets the definition of common carrier its operations are necessarily characterized as a public use. Denbury I requires that a pipeline must meet the reasonable probability test in order to avail itself of that definition, but having met that test there is no additional need to demonstrate a public use. Thus, the definite use language has no place in the summary judgment analysis. The standard imposed in the Beaumont court s opinion becomes even more onerous when it seeks to marry the definite use language with the requirement that it be established at the time the company first intends to build the pipeline. Pipeline companies face numerous variables at the time they contemplate construction of a new line. The cost of construction can vary; the cost of operation can vary; the route may change due to landowner concerns or other changes; and all the shippers and offtakers may not be known. Requiring a pipeline to contract with a third party for transportation services in order to qualify to be a common carrier before it built its pipeline and knows these answers puts the cart before the horse. Neither is it reasonable to expect a third party to contract for transportation on a pipeline that has not been built. Tellingly, the Form T-4 filed with the Railroad Commission in which a pipeline declares whether it will be operated as a common carrier or private line requires a pipeline to include an overview map of the line and other detailed data regarding its operation. This form could not be completed at the time the company first intends to construct the pipeline. The Texas Supreme Court in Denbury I appears to acknowledge in its holding that no third party will contract with a pipeline until after it is constructed, stating a reasonable probability must exist that a pipeline will at some point after construction serve the public by transporting gas for one or more customers. Requiring that a pipeline show a definite use by the public before the pipeline is constructed ignores the practical realities of the industry. In fact, the

4 court s new standard devolves into a circular argument a common carrier pipeline needs eminent domain authority to construct a pipeline and contract for third-party transportation, but the pipeline cannot establish that it is entitled to eminent domain authority unless it has already contracted for use before the line is built. Finally, the Beaumont court asserts a new standard for summary judgment that by its own admission can never be met. The new standard requires that all evidence focus on intent, and that it predate construction of the pipeline, and then it finds that the question of intent is inherently subjective and thus the province of a jury. The facts of this case demonstrate this absurdity. The Green Line is currently transporting CO2 for at least one customer for hire, which should conclusively establish that there is a reasonable probability it will do so. And yet the Beaumont court rejects the evidence of actual thirdparty transportation and holds that a material fact still exists that such transportation will occur. So, in addition to the practical problems associated with demonstrating any definite use prior to construction, the court virtually assures that pipelines can never prevail on summary judgment, regardless of the circumstances. This will undoubtedly create additional litigation and puts a judicial finger on the scales for purposes of settlement. A landowner need only challenge a pipeline s common carrier status, knowing that summary judgment is not an option, and it has the advantage in negotiating a price for an easement on its property. That easement now must be valued not only at its fair price, but also include the value of the right to condemn the property at all. In conclusion, the Texas Supreme Court in Denbury I sought to balance the interests of landowners and pipelines. The Denbury II decision, however, significantly shifts this balance to the landowner and erects a new test that significantly burdens the ability to construct new common carrier pipelines in Texas. The actual holding of the Pate decision cited by the Beaumont court is instructive. A determination of whether a private entity has eminent domain authority should look to the terms of the legislative grant as well as to its spirit and purpose. The Legislature in Chapter 111 of the Texas Natural Resources Code granted the power of eminent domain to common carrier pipelines and declared that the construction of common carrier pipelines is vested with the public interest. A judicial test that creates undue and near-impossible burdens on the construction of new common carrier pipelines violates not only the terms of that legislative grant, but also its spirit and purpose. By Dane McKaughan, Greenberg Traurig LLP Dane McKaughan is a shareholder in Greenberg Traurig s Austin, Texas, office. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Notably, although the Denbury I court expressly restricts its ruling to carbon dioxide and hydrogen pipelines, the Denbury II court speaks more broadly, potentially encompassing other common carrier pipelines under Texas Natural Resources Code Chapter 111. [2] See Murray v. Cadle Co., 257 S.W.3d 291 (Tex.App. Dallas 2008, pet. denied) (involving suit to enforce judgment lien); Logan v. Mullis, 686 S.W.2d 605 (Tex. 1985) (involving suit for damages and injunction against easement holder for removing a culvert).

5 [3] The Beaumont court cites no authority for the proposition that the level of participation by third parties in the West Hastings Unit discounts that evidence for purposes of the common carrier analysis. In fact, it is generally held that the character of the use of property rather than the extent of its use determines whether the use is a public one. See Rayburn on Condemnation, 8.02 (1998); West v. Whitehead, 238 S.W. 976 (Tex. Civ. App. San Antonio 1922, writ ref d). [4] See Borden v. Tresplacios Rice & Irr. Co., 86 S.W. 11 (Tex. 1905). There are two issues of note with this case. First, the Legislature passed Texas Natural Resources Code Section in 1977, thereby establishing that common carriers are vested with the public interest more than 70 years after the origination of the definite use language relied on by the Beaumont court. Second, Borden also states that we further agree that this public right or use should result from the law itself. Again, this was accomplished by the Legislature in All Content , Portfolio Media, Inc.

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