Thursday, December 22, 2011

Keystone XL and eminent domain

As you know, I've been a big supporter of the Keystone XL pipeline, calling the apparent opposition to it by Obama and others "inexcusable."  And it is.  But that does not mean the pipeline is without issues. At Planet Gore, Greg Pollowitz discuses the pipeline's interaction with an area dear to my heart, eminent domain:
Keystone is being built without taxpayer money, making the hypocrisy of Team Obama and the Left’s new concern for exact job-growth estimates even more galling.
But jobs really aren’t the important issue. There’s an issue brewing that could derail the pipeline, and it’s an issue conservatives really should be taking a hard look at: eminent domain.
From the New York Times in October:
Randy Thompson, a cattle buyer in Nebraska, was informed that if he did not grant pipeline access to 80 of the 400 acres left to him by his mother along the Platte River, “Keystone will use eminent domain to acquire the easement.” Sue Kelso and her large extended family in Oklahoma were sued in the local district court by TransCanada, the pipeline company, after she and her siblings refused to allow the pipeline to cross their pasture.

“Their land agent told us the very first day she met with us, you either take the money or they’re going to condemn the land,” Mrs. Kelso said. By its own count, the company currently has 34 eminent domain actions against landowners in Texas and an additional 22 in South Dakota.
In addition to enraging those along the proposed pipeline’s 1,700-mile path, the tactics have many people questioning whether a foreign company can pressure landowners without a permit from the State Department — the agency charged with determining whether the project is in the “national interest.” A decision is expected by year’s end on the pipeline, which would carry crude oil from Alberta to American refineries.
A government official with knowledge of the permitting process who would address the issue only on condition of anonymity said, “It is presumptuous for the company to take on eminent domain cases before there is any decision made.”
Landowners have begun joining forces and challenging the company’s assumption that it can legally seize land.
And from Canada’s National Post in November:
But there’s more to the anti-Keystone movement than greens, something that may be more difficult to fight. These are the property-rights defenders who are unhappy with TransCanada’s use of expropriation – under U.S. laws of eminent domain – to take over land to make way for the pipeline.
In Nebraska and South Dakota, where TransCanada is laying new routes for the XL, local landowners are marshalling opposition to eminent domain practices. Eminent domain allows corporations, with state help, to force local landowners to give up control over land. Compensation is paid, but the exercise of eminent domain is a court-challenge process. In recent years, eminent domain trends appear to be moving against allowing corporations the rights they once had.
Eminent domain is also seen – often rightly – as a subsidy to corporations. Such subsidies can be worth millions. The eminent U.S. leftist Alexander Cockburn (no friend of global warming greens) wrote that the Keystone XL “will require one of the largest and most aggressive eminent domains actions since the construction of the Interstate highways.”
That may be going too far. But the practice of eminent domain is under attack across the United States. Alexandra Klass, of the University of Minnesota Law School, writes that recent cases suggest the power to use the law to take over property is under constant reform, especially as it relates to natural resource developments.
A review of eminent domain and property rights reform in the Interior West reveals that while there has not been a frontal attack on natural resource development takings, subtle reforms have taken place. both as a result … of changing economic and social forces in the region. Those reforms can be seen as part of a broader reconsideration of the role of natural resource development in the Interior West, as those states attempt to balance economic development, urban expansion, traditional natural resource development, and preservation of the environment. In adopting recent reforms, state legislatures and courts are readjusting the allocation of property rights in favour of individual property owners to address the present-day needs of their states, just as they adjusted them in favour of natural resource extraction companies to promote that industry over 100 years ago.
Roughly, that means the ability of natural resource enterprises and pipeline firms such as TransCanada to use eminent domain and expropriation is diminishing rapidly. It will not disappear completely. Eminent domain is still a standing part of the U.S. legal system and part of its political culture. But it is going to be more and more difficult. The Keystone XL experience in key states shows that the system is being challenged on a monthly basis. With the delay in approval, the risks mount that TransCanada’s access to eminent domain will have diminished by the time the next review comes up.
The aforementioned New York Times article does say that TransCanada has agreements with some 90 percent of the landholders along the route in Nebraska and TransCanada states in this .pdf fact-sheet:
. . . Keystone XL extends TransCanada’s commitment to treatlandowners with respect and work with them in good faith. That commitment is reflected in the fact thatwe have successfully reached easement agreements with more than 80% of landowners on the route in Texas (as ofFebruary 2011). In addition, we have currently negotiated agreements with almost 93% of landowners who own/control almost 90% of the tracts of land along the entire pipeline route.During our 60-year history of safely meeting American’s energy needs, we have developed positive relationships with morethan 40,000 landowners in North America. We meet face-to-face with landowners to understand their specific needs and addresstheir concerns. We work hard to be a good neighbor.
That’s all well and good, but as we saw with the conservative outrage over the Kelo case, there’s a question whether the government should use its power of eminent domain for a private enterprise. What makes Keystone XL different than Kelo are the national-security concerns which are not only voiced from by the Right. Former NSA adviser Jim Jones and current Democratic governor of Montana Brian Schweitzer have both cited the need for energy resources from an ally as a reason to approve the pipeline.
I’m a supporter of the Keystone extension, I think it will bring jobs to America, but I’m still squishy on the national-security argument that would allow TransCanada to use eminent domain to take land for the route. If TransCanada wants to build the pipeline, they need to do it without eminent domain, at least in my opinion.
Now, now, this is an interesting issue. TransCanada is a private company, and I was and am outraged over the Kelo decision.  But there are certainly legitimate national security issues.  Which should trump?

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