The TransCanada Keystone XL Pipeline is a much bigger issue than simply tar sands and oil. The controversy surrounding the pipeline highlights again the very real controversy over the use of eminent domain. Private property ownership is the principle component of free society. One of the greatest freedoms in America, to own land free from coercion or threat of theft, is the cornerstone of a free and prosperous nation. I cannot speak to how the pipeline is being handled in other states but in Texas it should cause landowners to stand up and take notice.
First, some background. When attempting to acquire a person’s land, there are two ways to do it. You can negotiate with the landowner to buy it from them directly or the power of eminent domain (government force) can be exercised to take ownership and evict the property owner. Texas bestows the power of eminent domain to pipelines [Texas Natural Resources Code - §111.019] if the pipeline meets the prescribed common carrier definitions. In filing an “Application for Permit to Operate a Pipeline in Texas” with the Texas Railroad Commission, companies indicate, by checking a box, whether they intend to operate a private pipeline or whether they are a common carrier.
However, the Railroad Commission claims no authority to verify or certify that the pipeline operator is in fact a common carrier. So who does? The short answer is: no one. As it stands now in Texas, when pipeline companies come with eminent domain power in hand to claim your land, your only option is to lawyer up and fight them in the courts at your own expense. This is how tenuous your property rights are in this state!
Recently, the Texas Supreme Court ruled on a case (Texas Rice Land Partners, Ltd. And Mike Latta V. Denbury Green Pipeline-Texas, LLC) addressing this exact issue.
In the opinion, Justice Willett writes:
The Texas Constitution safeguards private property by declaring that eminent domain can only be exercised for “public use.” Even when the Legislature grants certain private entities “the right and power of eminent domain,” the overarching constitutional rule controls: no taking of property for private use. Accordingly, the Natural Resources Code requires so-called “common carrier” pipeline companies to transport carbon dioxide “to or for the public for hire.” In other words, a CO2 pipeline company cannot wield eminent domain to build a private pipeline. [Emphasis Added]
Now, the opinion in this case specifies a CO2 carrier because the respondent, in this case was specifically claiming common carrier status as a CO2 pipeline but, the ruling affects all pipelines in the State of Texas. But had Texas Rice Land Partners and Mike Latta not pursued this issue all the way to the Texas Supreme Court, they would have lost their property (or an easement on their property) to the pipeline. Is it not the duty of government to insure that the law is followed? But in this case, enforcement of law and justice fell on the shoulders of the victim.
Yet, there is still more to consider. If the company that claims the awesome power of eminent domain is, in fact, just a private line, one that does not meet the criteria of “common carrier” are they guilty of both fraud and theft? In other words, hasn’t there been a concerted effort on the part of the company to defraud landowners? What if the company has already taken people’s land? Are they not guilty of theft by fraud? Aren’t we all aware of cases where individuals have been charged with impersonating an government official and have been punished by fine and/or imprisonment? Have these companies not done the same thing? Have they not impersonated a common carrier in an attempt to defraud an individual out of their land by coercion and force? These are questions that demand an answer if Texans are to be secure in their property.
Consider whether an individual victim of theft by fraud is expected to go out and hire a private investigator to track down the perpetrator, garner enough evidence to then hire an attorney to prosecute the offender? Of course not, they simply report the issue to the police and the state takes over. Law enforcement is the state’s job. The Denbury Green case demonstrates that the state of Texas has failed to enforce our own law.
The question that should be surrounding the Keystone XL Pipeline is whether the company is a common carrier under Texas law or whether it is merely a private company building a pipeline for their own private use. We can not compromise freedom for security, not job security or economic security or energy independence. Many are saying, “Well, this pipeline means jobs!” Yes it does. Or “This pipeline means energy independence.” and that it might. But, is that a comforting thought when any company can come and take your property for its own profit?
As Texas steps up to meet the call for energy independence, let’s make sure we remember the importance of fair and just law – law that applies equally to everyone. We must demand state and local governments that enforce those laws rather than turn a blind eye to abuse.
