The test utilized by the court to determine Denbury Green’s common carrier status was whether or not the pipeline would serve the needs of the public, not only those of the builder. To pass this test, the court noted, the pipeline would need to provide reasonable proof of a future customer. The court stated that simple assertions that a pipeline would eventually be used for the public and self-identifying with the Texas Railroad Commission as a common carrier would not meet the test.
To reasonably prove that the Green Line would have a future customer, Denbury Green cited a contract with an unaffiliated entity for the transport of CO2, entered into after Denbury Green completed construction of the pipeline. The court coupled the contract with the close proximity to CO2 refineries to find a pre-construction intent that the pipeline would at some point be used for the needs of public, qualifying the pipeline as a common carrier. Therefore, the court granted summary judgment to the pipeline, and allowed the pipeline to keep the private property taken with the eminent domain power.
Of note, the contract for the transport of CO2 was entered into after Denbury Green completed construction of the pipeline, and after Denbury Green had already purported to use the power of eminent domain. The court found that this post-construction contract showed a pre-construction intent to serve the public. This finding is significant because transportation contracts are often entered into after the actual construction of the pipeline, easing the requirements for pipelines to qualify as a common carrier, and thus receive the power to take private property through eminent domain.