Pipeline developers, take note: the identity of “common carriers” just became (slightly) clearer.

On Jan. 6, the Texas Supreme Court issued its opinion in the Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd. et al. case (Texas Rice II), which had been sent back on remand in 2012 to enable lower courts to adequately test whether a “reasonable probability” exists that the pipeline in question serves the public, enabling its “common carrier” status and, in turn, the pipeline developer’s powers of eminent domain over the surface owner.

By holding in summary judgment that such a probability existed when presented with a post-construction transportation agreement with an unaffiliated customer, the court provided a helpful precedent to pipeline developers who have been waiting anxiously for more detail about the relevant factors in the court’s application of the so-called “Reasonable Probability Test.”

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