There are many misconceptions about how multi-line rights are created in Texas. Contrary to popular belief, a multiple pipeline right-of-way cannot just be created by changing “pipeline” to “pipelines” in the granting provision.[1] In fact, if there is not an express provision in the easement granting the right to lay additional lines, a court will not imply rights beyond those of the easement.[2] In making the determination of multi-line use, Texas courts have routinely turned to the compensation clause and granting provision to see what the parties contemplated at the time of execution.[3]
In Hall, the landowner, Tom Hall, alleged that the pipeline operator, Lone Star Gas Company, excessively used its easement, which granted Lone Star “the right of way and easement to construct, maintain, and operate pipe lines.”[4] Lone Star also had the right of “ingress and egress from the premises, for the purposes of constructing, inspecting, repairing, maintaining, and replacing the property of [grantee].”[5] Although the subject easement agreement used the term “pipe lines,” it did not contain any further expression granting the right to lay additional lines in the future.[6] Furthermore, the compensation clause for future lines was intentionally deleted from the easement agreement.[7] In accordance with precedent case law, the court in Hall weighed the impact of this deletion in order to arrive at the true meaning and intention of the parties.[8] The court concluded that without some express provision addressing the right to lay additional lines or providing for additional compensation for a new line, Lone Star’s proposition that the easement permits future additional lines could not prevail.[9]
Ownership changes at the parent-company level do not constitute a transfer of “direct ownership interests” in distant subsidiaries, a unanimous panel of the 8th Circuit held last month in Laredo Ridge Wind LLC, et al v. Nebraska Public Power District, No. 20-1956, 2021 WL 3731897 (8th Cir. Aug. 24, 2021). The Nebraska Public Power District (NPPD), a public utility company, sued four affiliated wind farm businesses for breach of Power Purchase Agreements (the PPAs) after the wind farms’ parent companies changed hands multiple times. The district court granted summary judgment in favor of the wind farms and a preliminary injunction preventing NPPD from terminating the PPAs, and the 8th Circuit affirmed.
Section 401 of the Clean Water Act (CWA) requires applicants for federally permitted projects “that may result in any discharge into the navigable waters” of the United States to seek water quality certifications from the local certifying authority that has jurisdiction over the project area where the discharge would occur. This cooperative federalism within the CWA gives states and authorized tribes the ability to protect their water resources from impacts related to federally permitted projects. This in turn provides states with the potential to exert significant influence over the development of energy and infrastructure projects, many of which are national in scope. For example, federal projects that require Section 401 certification can include, but are not limited to, natural gas pipelines, liquefied natural gas terminals, coal export terminals, oil pipelines and other interstate projects.
