TransCanada, the energy company behind the Keystone XL pipeline, was ordered by the Texas State Supreme Court last week to submit information on its use of eminent domain—an action that keeps a key landowner lawsuit alive.
Keystone opponents celebrated the move as a small victory in a larger battle against the company's seizure of private property that has united left and right in Texas.
The paperwork will be used by state Supreme Court justices to decide whether to hear a case by Julia Trigg Crawford, a farmer who is arguing that TransCanada illegally used eminent domain to take over part of her land to build its pipeline.
At issue are the legal rights of landowners to prevent corporations from condemning private lands to build oil and gas infrastructure projects. The Keystone XL is being constructed to carry oil from Canada's tar sands mines to Texas, and its 485-mile southern leg from Oklahoma to near Houston was completed this month. Depending on the outcome of Crawford's case, TransCanada possibly could be forced to dig up the section of the pipe that runs through her property. The northern segment still needs State Department approval because it crosses an international boundary.
TransCanada's takeover of private land has been a thorny issue in Texas and has brought together unlikely bedfellows. They range from environmentalists who largely oppose the project out of safety, water and climate change concerns to Tea Party members who see TransCanada's power to seize people's property as an abuse of eminent domain and government overreach.
Crawford's case has been making its way through the court system since 2012, with lower courts ruling that TransCanada was in the right to use eminent domain. The state Supreme Court's decision on Jan. 7 to force the company to submit information about its use of eminent domain is "promising news," said Renea Hicks, an Austin-based lawyer who has worked on land-use issues, but is not involved in this case.
"That they want more information means they are at least considering hearing the case," he said. "Historically, in 70 percent of the cases they do decide to hear, they reverse the lower courts' decision."
TransCanada has until Feb. 6 to file the information.
Shawn Howard, a spokesman for the company, said TransCanada isn't worried about the request.
"The court has simply requested a response to her claim as part of the Texas Supreme Court process," he said. "We are preparing and filing our response shortly."
If the state Supreme Court decides to hear the case and rules in favor of Crawford, it would set a legal precedent for the handful of other similar eminent domain cases underway in the state against TransCanada, according to Hicks. The pipeline is scheduled to begin transporting oil next week.
However, if the justices decide not to hear the case—or if they hear the case and uphold the lower courts' rulings—TransCanada's power of eminent domain would be allowed to stand and the pipeline could stay where it is.
Crawford, a third-generation farmer in Lamar County, filed her lawsuit after TransCanada was given permission to seize a 50-foot wide parcel of her 650 acres against her will. The company was granted eminent domain by the state's Railroad Commission, which regulates the oil and gas industry, on grounds that the Keystone XL is a "common carrier." The designation means the pipeline will be used for the good of the Texas public, among other things, and it gives the company a greenlight to condemn property using eminent domain, even if a landowner objects.
One of the only ways for landowners to challenge TransCanada is to prove that the project is not a common carrier, which is what Crawford and her lawyers are trying to do by arguing the pipeline doesn't have any "on-ramps" in Texas, meaning it can't service Texas companies.
"TransCanada has repeatedly demonstrated that it qualifies for common carrier status in the State of Texas," Howard said.
'It Could Ruin the Farm'
Crawford told InsideClimate News that TransCanada first approached her father in 2008 about using a section of her family's farm for the Keystone XL. Her father refused the company's initial financial offer of $7,000. When Crawford took over management of the farm in 2010, TransCanada was still trying to obtain access. In 2012, the Canadian company made a final offer of $21,000. When she rejected the deal, the company filed for eminent domain with the Texas Railroad Commission and was granted rights to the land. Crawford immediately appealed the approval.
While the case was in appeals, TransCanada laid pipe on her stretch of land.
Crawford said that to access her property the company had to run the pipeline under a creek that borders her land. She said she uses the water to irrigate approximately 400 acres of corn, soybean and wheat crop.
Pointing to an ExxonMobil oil pipeline spill in an Arkansas neighborhood last year, and to a much larger spill in Michigan that is still being cleaned up more than three years later, Crawford said the risks are too high.
"Between what happened in Michigan and Arkansas, we know how disastrous it is when tar sands spill into water," Crawford said. "I already talked to my insurance company and they won't cover my crop losses if the pipeline leaks. It could ruin the farm."
For now, Crawford said she is pleased that she might have a shot at getting heard by the highest court in the state.
"Even just hearing that they are interested [in hearing the case] makes us optimistic," Crawford said. "It is a little win in a much bigger battle."