Rich Phillips Quoted in Law360 on SCOTX Pipeline Cos. Ruling

“Pipeline Cos. See Easier Takings Route In Texas With Denbury”

Pipeline companies in Texas will be better armed in court battles over the right to use eminent domain after the state Supreme Court spelled out Friday the kind of evidence they can use to establish they are common carriers with the right to take property, in a decision holding Denbury Resources had met that yardstick.

While pipeline industry lawyers say the court’s Friday decision is still a relatively high bar to exercise the power of eminent domain compared to the standard that applied before 2012, they are happy the court emphasized Texas’ robust public policy favoring pipeline development and said it evens the playing field. Attorneys for landowners, however, say they are deeply disappointed in the ruling, which they criticize as giving short shrift to private property rights.

“It still leaves in place the fact that as a pipeline owner, you can’t just ‘check the box’ and say anyone who wants to use the line can use it,” Rich Phillips of Thompson & Knight LLP said. “You still have to show a reasonable probability someone other than the owner can use the pipeline. This case was a matter of how do you show that and what evidence is required.”