? When pipeline developers announce a project, "eminent domain attorneys come out in force."

? Inexperienced lawyers can create big problems for landowners looking to stop a pipeline.

? The Federal Energy Regulatory Commission has room to learn more about the eminent domain process, which could smooth things for both parties.

Local opposition to gas pipeline projects has attracted the attention of lawyers looking for clients, but they cannot always deliver for people in the path of these pipes. Congress gave FERC broad powers to permit energy infrastructure and grant the power of eminent domain to developers. Most commission procedures have been tested in court. In this environment, there have been legal victories for pipeline opponents, but there have also been many defeats.

Carolyn Elefant, the owner of the Law Offices of Carolyn Elefant PLLC, who has years of experience with pipeline and eminent domain cases, talked with S&P Global Market Intelligence about the legal implications of pipeline development and opposition. The following is an edited transcript of the conversation.

S&P Global Market Intelligence: Does a pipeline announcement draw out attorneys making big promises to affected people?

Carolyn Elefant: Whenever a pipeline route is announced, eminent domain attorneys come out in force. Almost immediately, that creates a conflict of interest, since most eminent domain firms work on contingency, so their interest in "stopping" the pipeline is to gain leverage.

There was a time when eminent domain lawyers had given up on pipeline cases because they felt there wasn't any money in it just for a tiny easement, but in larger cases, being able to sign up even 30 to 40 landowners can mean a decent payday.

In most cases, it is law firms coming out to solicit business. Even some environmental groups have gotten on board — Appalachian Mountain Advocates, which works on MVP [the Mountain Valley pipeline project of EQT Midstream Partners LP and partners] and ACP [the Atlantic Coast pipeline project of Dominion Energy Inc. and partners], has a relationship with local attorneys to represent impacted landowners. In Lancaster, Pa., [traversed by Williams Partners LP's Atlantic Sunrise project], I was contacted by another environmental group.

Eminent domain does not appear to be an effective way to fight FERC pipeline approvals, but opponents have had success in state reviews for Clean Water Act permits, something you helped pioneer.

Yes, Clean Water Act is still a defense. Clean Air Act is promising.

I think rate issues, like 14% return on equity, is a good one to pursue now in light of Sierra Club v. FERC. I had raised the issue originally at FERC. Sierra Club had not. Also, challenges to FERC's need analysis.

I think that there may be some challenges to the constitutionality of eminent domain that will stick.

What harm can come from inadequate counsel?

There are enormous problems if landowners are not represented by experienced counsel.

For starters, there are steps that can be taken in the FERC process to address issues, such as boarding horses or special measures to protect organic farms, so that by the time compensation is negotiated, these measures are "givens" rather than additional points that have to be negotiated, which could mean less [money].

Second, many lawyers don't realize how quickly the eminent domain process can proceed with quick take [an eminent domain process in which government can take possession of property even before a court rules] and are not prepared.

Or they don't realize that FERC will never allow eminent domain for more than one pipeline, so they will have people agree to easements that allow two to three pipelines.

In court, they may not realize how to assess damages: They may ask for a per-foot valuation for the easement, which is never going to be a large number given the size of the easement. The real money is in the overall diminution of value to the entire property.

They also do not realize that once a property is taken via "quick take," the case is all about money — any hope for negotiating additional restrictions is lost. For some clients, those restrictions are very important.

I had one client who was adamant about moving the pipeline further from her house. She had a unique, expensive property and undoubtedly would have gotten an upper-six-figure award had the case gone to trial. The company had already filed eminent domain, and the clock toward quick take was ticking. I agreed to allow surveys on her property to stave off quick take, and that gave us time to negotiate moving the pipeline an extra 150 feet from her house and a low-six-figure deal.

An inexperienced lawyer would either have told her that getting it moved was impossible — honestly, it was pretty close to impossible after the certificate issued, but I knew how to do it — or would have let the clock run so that the property was taken, after which a move would not have been possible.

What should landowners do? What should FERC do?

If the goal is to stop the pipeline, the eminent domain lawyer may not be much help during the FERC process. If they simply want to maximize settlement, it might help to retain someone. A landowner should ask lawyers whether they have experience with eminent domain in federal district court — where FERC cases will go — and experience with easements, very different from full acquisitions.

There is a lot that FERC can and should be doing. For starters, FERC should have minimum requirements for easements that include certain basic terms so that landowners don't have to negotiate those.

FERC should also educate itself about what happens in the eminent domain process, because it is completely clueless. In a recent order, FERC suggested that landowners who want trees replanted should ask the court to do so in eminent domain. An eminent domain court can't do anything but determine compensation.