When the state of Kentucky pays to conserve natural areas, it tries to protect that land forever.
Now for first time in nearly 30 years, the power of those protections could be tested in the fight over the future of Bernheim Forest’s Cedar Grove wildlife corridor, according to state environmental advocates.
In Louisville Gas and Electric's pursuit to build a natural gas pipeline through Bernheim Forest, the private utility is using eminent domain to try and seize land from Bernheim, a private nonprofit. But LG&E isn’t just suing Bernheim and other holdout landowners.
It also filed suit in September against a state board, seeking to break the conservation easement on Bernheim property. The easement restricts development, like pipelines, and also requires Bernheim to manage the habitat for imperiled species.
Kentucky environmentalists say it is the first time a utility has attempted to overturn a conservation easement held by the state, and it could result in weakening protections for natural areas in the rest of the state.
“There’s never been an effort to terminate one of those easements,” said Don Dott, president of the Kentucky Land Trusts Coalition. “So this is new and this is potentially a very bad precedent.”
Representatives of LG&E and the Kentucky Energy and Environment Cabinet declined to be interviewed for this story, citing the pending litigation. After this story was published, LG&E said in a statement provided by spokesperson Liz Pratt that a conservation easement "does not prevent the exercise of eminent domain."
"[W]e can say that designing a pipeline route through property where there is no conservation easement – only to have one established after starting negotiations to purchase that property – is a new experience for us," Pratt said.
Louisville Gas and Electric has said it’s run out of capacity on the current gas pipeline and needs to build another to keep up with demand in the area around Mt. Washington, Shepherdsville, Clermont and Lebanon Junction.
The utility received approval from state regulators in 2017 to build the 12-mile-long natural gas pipeline to serve customers in northern Bullitt County.
Then in 2018, Bernheim bought the nearly 500-acre property from a private landowner for about $1.4 million to serve as a wildlife corridor and protect natural habitat for endangered species, including Indiana and northern long-eared bats. The property is north of the bulk of the park and is not open to the general public.
The pipeline would cut about three-quarters of a mile through the Bernheim wildlife corridor along an existing easement for electric transmission lines.
Land Bought Through Conservation Fund
Part of the money for the property came from the Imperiled Bat Conservation Fund, and about half came from the Kentucky Heritage Land Conservation Fund, said Mark Wourms, Bernheim's executive director.
Started in 1990, the Kentucky conservation fund is used to buy land for nature preserves, state parks, forests and wildlife management areas, according to its website. Revenue for the fund comes from Kentucky nature license plates, minerals taxes and environmental fines.
The fund then protects each site “in perpetuity” with a deed restriction or a conservation easement to prevent development. So while Bernheim owns the land, the Kentucky Heritage Land Conservation Fund Board, a state entity, holds the conservation easement.
Court records show LG&E filed suit in September against the Kentucky Heritage Land Conservation Fund Board to overturn the conservation easement on Bernheim property.
Wourms says that if the suit is successful, or if the state decides not to oppose the condemnation, this would be the first time LG&E sought to break a conservation easement in pursuit of new development.
“It would really set a terrible precedent,” Wourms said. “It weakens every conservation easement in the state and it’s not hard to argue it would weaken every conservation agreement in the United States.”
Nationally, Conservation Lands Under Similar Threat
Attempts to use eminent domain to develop new energy infrastructure on conservation lands are happening across the country, including in New Jersey, New Hampshire and Virginia, said Erin Heskett, vice president of conservation initiatives with the Land Trust Alliance, a national non-profit land conservation group.
Every time a conservation easement is broken, it erodes the ability of land trusts and other conservation groups to defend that land from energy projects like new pipelines, Heskett said.
"Energy companies and regulators are looking for the path of least resistance," he said. "And that path of least resistance is often open space and protected land."
There’s also an interesting legal argument brewing in the suit between LG&E and the Kentucky Heritage Land Conservation Fund Board: LG&E, as a private investor-owned utility, is using eminent domain powers granted by the state to break the state’s own conservation easement.
And if LG&E succeeds, it would send a signal that even the state doesn’t have the right to protect its own lands, Wourms of Bernheim said.
“It’s kind of a crazy irony,” he said.
So far, the Kentucky Heritage Land Conservation Fund Board hasn’t announced whether it intends to fight the lawsuit.
This story has been updated to include a comment from LG&E.
