Carbon Capture vs. Louisiana Constitution

By Woody Jenkins, Editor, Central City News – Baton Rouge

Outgoing Louisiana Gov. John Bel Edwards has promoted carbon capture projects for years.  Somewhat surprisingly, new Louisiana Gov. Jeff Landry also gave carbon capture his full-throated endorsement on Friday, Dec. 29, 2023, just days before being sworn in as governor.

Carbon capture is the process of separating out CO2 during the burning of fossil fuels, transporting it, and burying it underground, which is called carbon sequestration.  Carbon sequestration has been especially controversial in Livingston, St. Helena, and Tangipahoa parishes where carbon capture projects have been proposed.

Citizens of these areas are in an uproar over these projects.  They say CO2 is not a pollutant and that there is no justification for the projects, which they describe as having unknown risks.  Developers of carbon capture projects will be paid hundreds of millions by the federal government, but property owners in the areas affected say it is a gigantic boondoggle and that they will receive few benefits but have lots of risk.

Last year at the Louisiana Legislature, big energy companies hired an army of lobbyists to kill legislation that would have stopped or restricted carbon sequestration.

Also, they were able to bottle up in committee legislation by Rep. Robby Carter to prohibit the expropriation of the surface or subsurface of private lands for carbon sequestration.  Rep. Carter said Shell and Exxon each have 25,000-acre carbon sequestration projects set for St. Helena Parish,

The purpose of this article is to discuss the barriers posed by the Louisiana Constitution of 1974 to any effort to expropriate private property for carbon capture or sequestration projects.

In 2020, Sen. Sharon Hewitt passed Act 61, which broadened the authority of private companies involved in carbon capture to expropriate private property for their projects.  The expropriation could include the taking of subsurface rights under homes, businesses, or agricultural property.

How do takings of private property for carbon sequestration square with the Louisiana Constitution?

As the author of Article I, Section 4 (Right to Property) of the Declaration of Rights of the Constitution, I have to say there could be big problems for developers.

To understand their dilemma, it is essential to realize the United States Constitution does not recognize the Right to Property in the Bill of Rights.  That right is protected only in a back-handed sort of way.

Article 5 the U. S. Constitution provides that “No person shall be… deprived of… property without due process of law, nor shall private property be taken for public use, without just compensation.”  These federal protections were made applicable to the states by the 14th Amendment.

On the other hand, the Louisiana Constitution includes the Right to Property in the Declaration of Rights.  The protections provided are very extensive and supercede the limited protection of property rights in the U.S. Constitution.

Unfortunately, even some Louisiana attorneys think of expropriation cases only in terms of meeting “due process” standards and making sure so-called “just compensation” is paid.  However, under the state constitution, there is much more to be considered.

Article I, Section 4 of the Louisiana Constitution of 1974 provides that private entities which attempt to expropriate private property must have a “public” and a “necessary” purpose.  It further provides that “whether the purpose is public and necessary shall be a judicial question.”  In other words, it is up to the judge to decide the issue, without respect to any declaration in the statue or any permit issued by the state.

Is there a “public” purpose served by carbon sequestration?  Attorneys opposing expropriation for this purpose would argue no. However, the concept of “public purpose” has been interpreted so broadly by the courts that they would likely say the purpose is indeed “public.”

However, can an expropriation for a carbon sequestration project meet the test of being “necessary”?  In general, our courts limit expropriation for highway or pipeline purposes to only such property as may be necessary to get from point A to point B.  

So how can it be argued that a carbon sequestration project must be at a specific location in, say, Livingston Parish.  Why not in another spot in Livingston where a sale could be negotiated?  Or why not in Lincoln or Tensas Parish?

The question of whether a private party could prove to the judge that a taking is “necessary” in a specific spot seems unlikely. Similarly, how could it be proven that expropriation is “necessary” at all when there are hundreds of thousands of acres of land across the state?

The fact is, there are many tracts of land where carbon sequestration could occur.  So meeting the requirement that it is “necessary” to locate in a particular spot may be a tall order.

However, suppose that a judge in Livingston rules that the proposed expropriation for carbon sequestration is both “public” and “necessary.” (An unlikely assumption!)

The next major problem is 1) who will determine the compensation to be paid to the property owner, and 2) what legal standard will determine the amount of compensation?

Under the Louisiana Constitution, the amount of compensation in expropriation cases must be determined by a jury if either party requests a jury trial.  Article I, Section 4 provides that “In every expropriation, a party has a right to trial by jury to determine compensation…” 

It can be assumed without much fear of contradiction that a jury is much more likely to come back with a favorable sum for the property owner than a judge would.  Bear in mind also that the trial would probably occur in a parish such as Livingston, St. Helena, or Tangipahoa, where public opposition to carbon capture is widespread.

Perhaps the proponents of carbon capture have not thought this through, but the potential for enormous judgments seems very likely.

Finally, consider the legal standard by which the amount of compensation shall be determined.  This is important because it is key to whether a higher court might attempt to overturn a generous judgment by a jury.

What is the legal standard for compensation in expropriation cases established by Article I, Section 4?

I wrote a law review article that covered this subject immediately after the adoption of Louisiana Constitution of 1974.  The article appeared as part of a symposium on the new Constitution by Loyola Law Review.  Gov. Edwin Edwards wrote the lead article and I wrote the article on the Declaration of Rights.  

In that article (Loyola Law Review, Spring 1975), I said, 

The amount of compensation to be paid when property is taken is not merely “just compensation” as that term has been understood under the fifth and fourteenth amendments of the Federal Constitution and the 1921 State Constitution.  Instead, the owner must be compensated “to the full extent of his loss”.  This is intended to include things “which, perhaps, in the past may have been considered damnum absque injuria, such  as cost of removal”, attorney fees, inconvenience, loss of aesthetic value or business profits and so forth. The loss to be measured is the loss sustained by the owner himself.  The Section very carefully says that the owner is to be compensated “to the full extent of his loss” instead of “to the full extent of the loss” (emphasis added).  In other words, the compensation is to be determined subjectively with emphasis on the value placed on the property by the owner instead of on its so-called market value or replacement cost.  This emphasis will generally require compensation to be much greater than in the past.

Being quite candid, I wrote in the article that the tilt of the new Constitution was very much against expropriate, saying, 

Of course, the award of large sums by generous juries could have the effect of preventing the taking altogether.  Moreover, the committee did not intend the finding of facts in such jury trials to be reviewed by the courts, because the right to trial by jury in this instance is established by the Constitution, instead of by the statutes, as is the case in other civil jury trials.  In fact, the purpose of permitting jury trials was to encourage more substantial awards instead of placing the authority to decide compensation in the hands of a judge, who is an instrumentality of government paid by the state and the local police jury, either of which may be a party to the suit.

The bottom line is, carbon capture and sequestration can proceed, but the Louisiana Constitution in Article I, Section 4 could make it very expensive to expropriate property in the process of securing sites. Juries in places such as Livingston Parish are likely to see to that!

Former Rep. Woody Jenkins was a delegate to the Louisiana Constitutional Convention of 1973 and authored the Declaration of Rights of the Louisiana Constitution.   woodyjenkins2020@hotmail.com