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Kentucky Utility Regulators Want Proof Of Bernheim’s Legal Standing In Pipeline Complaint

Ryan Van Velzer

Kentucky utility regulators want more information to decide whether Bernheim Arboretum and Research Forest has legal standing to file a complaint over a natural gas pipeline in northern Bullitt County.

Bernheim filed a complaint with utility regulators in early August alleging Louisville Gas and Electric bypassed the typical process for a new natural gas pipeline and hid information from the public. Then the Kentucky Attorney General’s Office jumped into the fray last week asking to intervene and expand the scope of the case.

The order issued Tuesday says the Kentucky Public Service Commission can’t make a decision to move forward with the case until it learns more about Bernheim’s legal status.

Much of the order revolves around questions about Bernheim’s property rights (or lack thereof) at the time the pipeline project was approved, said Andrew Melnykovych, Public Service Commission spokesman.

“We’re still in the very early stages,” Melnykovych said. “I think we’re trying to get a clearer understanding of the issues underlying the complaint.”

In order to unpack the commission’s order, a quick review:

LG&E first mentioned the need for another 12-mile-long gas pipeline buried inside hundreds of pages of testimony in a 2016 rate case. The line would cut about three-quarters of a mile through Bernheim’s property, mostly along an existing electric transmission line.

Ordinarily, utilities apply to the Kentucky Public Service Commission for a certificate that a new project is safe, reliable and necessary. LG&E said it didn’t need it. The commission said it did, but didn’t make them apply and instead approved one based on information supplied in the rate case.

Bernheim’s complaint argues if the utility had filed an application, it could have given the public additional information about the proposed pipeline.

So here’s where Tuesday’s order loops back in.

The Public Service Commission wants to know if Bernheim has legal standing to claim that  public notice is required when they file a certificate for a natural gas pipeline.

Public notices are required for new electric transmission lines, but not for gas pipelines. However, a separate certification may have given landowners and stakeholders the opportunity to discuss the pipeline prior to its approval, thus giving more information to the public.

The commission also wants to know if Bernheim would have been entitled to receive some form of notice, according to the order.

To answer that, it may mean figuring out who knew what, when.

Bernheim bought the 494-acre Cedar Grove property back in 2018. But the Public Service Commission first gave LG&E approval for the pipeline a year earlier.

If the pipeline was approved before Bernheim bought the property, would it have received notice? Does the arboretum have a legally recognized interest in that case?

The commission gives Bernheim 20 days to file a legal brief and LG&E time to reply. The earliest the decision could come down from the Public Service Commission would be in mid-September.

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