Thursday, May 31, 2012

Keystone XL and Eminent Domain in Texas

Opposition to TransCanada’s Keystone XL pipeline continues to unite parties that, in many other contexts, routinely clash. The latest issue surrounding the pipeline in Texas highlights the pairing of ardent private property rights activists with grass roots environmentalists.

Property rights groups and individual landowners are engaged in multiple lawsuits challenging TransCanada’s authority to condemn property in the Lonestar State for the purpose of installing pipelines to transport dense crude oil diluted with liquid natural gas before receiving the necessary federal permits to do the transporting. (As reported here on last week’s “In Case You Missed It” post, a suit is underway in Nebraska challenging the constitutionality of a state statute allowing pipeline companies similar authority.) Julie Trigg Crawford of Lamar County, Texas is the plaintiff in one such suit—the same Julie Trigg Crawford arrested at a White House demonstration last fall with organizer Bill McKibben and hundreds of others who, many in the name of the environment, sought to convince President Obama to deny TransCanada’s requested State Department approvals.

Among other contentions—including an allegation that by trenching or drilling on the condemned portion of her farm, TransCanada may interfere with federally protected Caddo Indian artifacts—Crawford is challenging TransCanada’s “common carrier” status. Unlike companies with pipelines that are available to carry petroleum for any producer in service to the public, private pipeline companies do not have the ability to condemn property in Texas. Yet, she alleges, pipeline companies need only check the box marked “common carrier” on this form to gain eminent domain authority, and only thereafter can condemnees challenge that authority. Crawford questions whether there will be any points of entry for any Texas petroleum products along the entire length of the Texas portion of TransCanada’s line. A hearing is set for July 9.

In a recent story on Crawford’s plight, former Republican gubernatorial candidate Debra Medina, the current chairwoman of “We Texans”—a group describing itself as a proponent of “limited constitutional government” and “freedom minded-principles”—was recently quoted as lamenting that “there is no one with regulatory power over the pipeline companies’ use of eminent domain.” Meanwhile, in a blog post depicting the scene at a “raucous” rally to support Crawford’s effort, a Natural Resources Defense Council staffer described the participants as “an unusual mix of tea party supporters, independents, Democrats, Republicans and even Occupy Dallas protesters.” I look forward to reading forthcoming scholarship on TransCanada’s condemnatory authority and its propensity to unite these types of rather strange bedfellows.

-Tim Mulvaney

http://lawprofessors.typepad.com/environmental_law/2012/05/keystone-xl-and-eminent-domain-in-texas.html

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