JUSTICE WAINWRIGHT, joined by JUSTICE JOHNSON, concurring.
I join the Court’s opinion but write separately to address the scope of the Court’s holding. The Court holds that to be a “common carrier” carbon dioxide pipeline, and endowed by the Natural Resources Code with the power to exercise eminent domain for public use, it must do more than check a box on a government form. ___ S.W.3d ___. I agree. The right of private property is a fundamental right expressly protected in the constitution. Severance v. Patterson, ___ S.W.3d ___ (Tex. 2012) (citing Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977)). The Court also holds that for a carbon dioxide pipeline owner to be a common carrier engaged in transporting the resource to or for the public, the pipeline’s only usersmust be more than a “corporate parent or affiliate.” ___ S.W.3d ___. Denbury Green Pipeline-Texas, LLC (Denbury Green), the pipeline owner and common carrier applicant, filed a second motion for rehearing solely on the issue of the breadth of the Court’s use of the term “affiliate” under sections 111.002(6) and 111.019 of the Texas Natural Resources Code. The Court denies Denbury’s second motion for rehearing in this cause. I concur that some affiliate relationships will not suffice to make the transport of gas for the benefit of the public, but I also believe that in providing guidance we should take care not to issue pronouncements exceeding the scope of the facts in dispute. See, e.g., Upjohn Co. v. U.S., 449 U.S. 383, 386 (1981) (“[W]e sit to decide concrete cases and not abstract propositions of law” and “decline to lay down a broad rule or series of rules to govern all conceivable future questions.”). I, therefore, respectfully disagree and would address the concerns raised on rehearing by Denbury
Denbury takes issue with footnote 23 of the opinion, arguing that we should not have included language stating blanketly that transporting gas for undefined affiliates is not a public use for purposes of the common-carrier test. Although I agree with the Court that evidence of public use and the relatedness of affiliated entities may be necessary to ensure that common carrier carbon dioxide pipelines are, in fact, used to transport gas for the public rather than to benefit close-knit families of companies under common control, I would refine the Court’s discussion of “affiliate.”
