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Bernheim appeals Bullitt County judge ruling allowing seizure of conservation lands

A creek at Bernheim Arboretum and Research Forest.
Ryan Van Velzer
A creek at Bernheim Arboretum and Research Forest.

A Bullitt County judge ruled in favor of Louisville Gas and Electric and Kentucky Utilities late last month. But Bernheim Arboretum and Research Forest is appealing the decision that would allow a gas pipeline to be built through conservation lands.

LG&E wants to build a natural gas pipeline that would cut a little less than a mile through the Cedar Grove Wildlife Corridor impacting habitat for threatened and endangered species. The utility says the pipeline is necessary to improve reliability and capacity in northern Bullitt County.

Lawyers for Bernheim argued the pipeline could be routed elsewhere to avoid impacts to habitat for endangered and threatened species, but in the opinion Judge Rodney Burress wrote that he saw no reason why the proposed pipeline would endanger wildlife more than other existing easements.

He also said LG&E’s natural gas pipeline meets the standard of “public use” consistent with the state’s eminent domain laws. Bernheim’s attorneys are appealing that decision. They say there are still outstanding questions about LG&E’s decision to seize lands that were, in part, paid for with public funding.

“The appeal is based on several significant questions that remain related to conservation properties in the commonwealth that are secured with public funds or encumbered by conservation easements,” the statement read.

When Bernheim bought the Cedar Grove Wildlife Corridor back in 2018, a state conservation agency paid half the purchase price in exchange for a conservation easement that would protect the land’s natural areas and habitat for imperiled bat species.

In a related case, the Kentucky Court of Appeals panel determined the state of Kentucky does have a property interest in the 494 acres. But both that panel and Judge Burress also conclude it doesn’t matter because of the way the Legislature wrote the state’s eminent domain law.

That law says a conservation easement “shall not operate to impair or restrict any right or power of eminent domain created by statute, and all such rights and powers shall be exercisable as if the conservation easement did not exist.”

LG&E is still in the process of receiving the necessary permit approvals, including a nationwide permit 12 from the U.S. Army Corps of Engineers. Federal officials also suspended a key permit for the gas pipeline last year to look for critical habitat for bats protected under the Endangered Species Act.

Additionally, LG&E still needs to ask utility regulators for approval to pass the cost of the estimated $74 million project onto ratepayers.

Separately, the Louisville Metro Council passed a resolution last week condemning LG&E for taking conservation lands in Bernheim Forest to build a natural gas pipeline.

The non-binding resolution calls on LG&E to immediately cease plans to build the pipeline through the Cedar Grove Wildlife Corridor. It says the power company should instead divert funding for sustainable energy projects.

The council voted 17-5 in favor of the resolution.

Ryan Van Velzer is the Kentucky Public Radio Managing Editor. Email Ryan at rvanvelzer@lpm.org.

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