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Special Status May Make Keystone Pipeline Impervious to Lawsuits

TransCanada has qualified as a 'common carrier' in the states along Keystone XL, a designation that has stumped some attorneys, advocates and observers

Mar 2, 2011
(Page 2 of 3 )
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To give anti-pipeline Texans a more united front, advocates are looking to create what state law refers to as "391 commissions" along the Keystone XL corridor. It allows communities within the same planning regions to band together and gain the legal status to oppose proposed development on a number of fronts.

Though TransCanada has already garnered most of the necessary state permits, Rittenhouse is one of several advocates exploring how 391 commissions might be able to challenge the Texas Railroad Commission, the Texas Council on Environmental Quality and other authorities.  

'Dark Corner' of Eminent Domain

Implemented judiciously on development projects, such as sidewalks, roadways, electricity transmission and distribution lines, water lines — and yes, even oil pipelines — eminent domain can be a tool that contributes to the public good, attorneys and other specialists interviewed for this article agreed.

In the United States, the power of eminent domain lies with the legislative branch. While the U.S. Constitution requires a taking to be for public use, the taker doesn't have to be a public or an American-based entity as long those involved are adequately compensated as required in the Fifth Amendment. 

"Not many people would argue that eminent domain should be scrapped all together, but it has gone too far in a lot of instances," Doug Hayes, a project attorney with the Sierra Club Environmental Law Program in Boulder, Colo., told SolveClimate News in an interview.

"I guess it's really just a question of how broadly you look at this public use requirement," Hayes said. "Landowners opposed to Keystone XL are saying this isn't benefiting us, and a lot of state courts have agreed with that by saying that you can't condemn land that wouldn't be open to the public."

"But it's a tricky subject," he continued. "TransCanada could argue that it will benefit the public good because it's supplying a secure source of fuel that isn't from the Middle East."

For good reason, California attorney Gideon Kanner refers to eminent domain as "the dark corner of the law." He borrowed that definition from lawyer Lewis Orgel, who wrote a book about the topic in the 1950s.

"When it comes to … eminent domain law, judges are all over the freaking lot," said Kanner, a professor emeritus at Loyola Law School with 40-plus years of experience in the subject. "Read enough cases and you'll see that judges can find justification for any ruling. But generalist judges don’t know diddly-squat about eminent domain."

Eminent domain laws are as different as state topographies, he said in an interview, and some are substantive and others aren't.

Generally, pipelines fall into the public use category, Kanner continued, which would cancel out the counter-argument attorneys are planning to use in court to fight Keystone XL. The common carrier question might be a more productive line in court, he added.

"It is entirely possible that some judge somewhere will say a foreign company can't [build] this pipeline," he said. "I don’t know if TransCanada is a common carrier. And God only knows what a judge in one of those particular states might say."

Why Isn't TransCanada Buying Land?

A portion of the Oklahoma Constitution prohibits private land being condemned for private use, Hentges said. And, he added that his state's Supreme Court already laid the groundwork for his TransCanada case involving Doris Lynn and her family by confirming that section of the state document.

TransCanada is conducting its pipeline acquisition as if it were a government entity, he said. As a private company, he added, they should be buying the land for Keystone XL instead of asking homeowners to assume such high risk by granting easements.

"Oklahoma has a long history of the fossil fuel industry taking what they want because that's what this state's economy is built on, oil and agriculture," he continued, referring to the conventional oil pipelines that crisscross the state. "Legislators have made a lot of bad law in favor of fossil fuels. But maybe you can put up with that when you’re seeing the benefits in your own state.

"But Keystone XL is different. With this, TransCanada is making a decision about what's in the public interest. That decision ought to be in the hands of Oklahoma citizens."

Sooners Plan to Persevere

Doris Lynn and two generations of her family are challenging TransCanada in court because they claim the pipeline company acted in bad faith by failing to make a reasonable offer for an easement through their 180-acre homestead in far southeastern Oklahoma's Bryan County.

She's the youngest daughter of the late A.L. and Dollie White — and ancestors on both sides had settled in this territory even before Oklahoma was granted statehood in 1907.

Several years ago, Lynn, 61, returned to the farm where she grew up to care for her ailing mother. She and her husband, Cecil, opted to make the move shortly after she retired in 2004 from her career at Johnson & Johnson in Texas.

They live in a house built in 1978 — not far from where the original family home once stood. One of her sisters, 69-year-old Sue Kelso, also plans to retire and move from Texas with her husband to a separate house on the acreage sometime this spring.    

"It seems like that company wants to build its pipeline and they don't care who they step on to get there," Lynn said.

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