Thursday, August 23, 2012

Texas Court Sides with TransCanada in Eminent Domain Dispute over Keystone XL

In a matter previously discussed on this blog here and here, a Texas trial court judge summarily ruled last evening that TransCanada is a “common carrier,” such that the Canadian pipeline company is authorized to condemn private property in Texas for construction of the Keystone XL project. 

In 15-word decision sent from his I-phone, Lamar County Judge Bill Harris concluded that TransCanada need not bear the burden of proving prior to construction of the pipeline that the pipeline will be available to carry petroleum for any producer in service to the public at a published price.  Opponents of the pipeline contend that the pipeline only will benefit a select group of private oil companies.  “Bold Nebraska” reports the extent of Judge Harris’s ruling:

Dear Counsel,

My rulings as follows:

Transcanada's MSJ is GRANTED
Transcanada's NEMSJ is GRANTED
Crawford's Plea to the Jurisdiction is DENIED

Mr. Freeman would you please forward orders consistent with my ruling for my signature?
Sent from my iPhone

The decision is certain to disappoint an unlikely mix of property rights activists, tea party supporters, and environmentalists, who have mounted a spirited challenge against the pipeline for its infringement on private property interests and the threat of significant ecological harms.  The New York Times is reporting that the landowner, farmer Julia Trigg Crawford, has vowed to appeal.

Construction on the pipeline began in another area of Texas earlier this month.  The pipeline is anticipated to transport oil from Oklahoma and West Texas—and potentially from Canadian tar sands as well—to Texas Gulf Coast refineries.  Extending the project into Canada requires State Department approval in light of the international boundary cross.  The State Department at least temporally rejected approval in January after Congress set a narrow deadline for a final decision that the Obama Administration found too constricting. 

Presumptive GOP presidential nominee Mitt Romney unveiled his views on energy policy this afternoon at a campaign event in New Mexico’s Permian Basin oil fields, promising a speedy approval of the extension of the Keystone XL into Canada should he prevail in November’s election.  A story on EcoWatch raises the possibility that Crawford’s case could pose a bit of a conundrum for the GOP as its convention begins this weekend in Tampa, given that the party’s 2008 platform included a firm stand against the use of eminent domain and called on “state legislatures to moot the [U.S. Supreme Court’s] Kelo decision.”

Stay tuned to the Environmental Law Prof Blog for continuing updates on Keystone XL.

-Tim Mulvaney

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