Anti-Eminent Domain but Pro-Pipelines: A Republican Conundrum

Sens. Ted Cruz and Marco Rubio criticize Donald Trump for using eminent domain, but both—like many Republicans—support pipelines that would use it.
Donald Trump has been criticized by other Republican candidates for using eminent domain

Other Republican presidential candidates have criticized Donald Trump for supporting eminent domain. Credit: Reuters

As Donald Trump emerges from Super Tuesday as the frontrunner for the Republican presidential nomination, one ghost from his past refuses to disappear.

In the mid 1990s, Trump tried unsuccessfully to seize the home of Vera Coking, an elderly widow in Atlantic City, to build limousine parking for his adjacent Trump Plaza hotel and casino. Sens. Ted Cruz (R-Tex.) and Marco Rubio (R-Fla.) have attacked Trump over the case, calling it a clear abuse of eminent domain—the mandatory sale of private land for public use.

The Cruz campaign in a recent ad called eminent domain a "fancy term for politicians seizing private property to enrich the fat cats who bankroll them—like Trump."

When it comes to parking lots and casinos, government seizure of private property is an easy issue for politicians to oppose. But when it comes to forcing landowners to sell property so that private companies can build pipelines, it's an issue nobody is talking about. Cruz, Rubio and all the other Republican candidates for president have come out in support of pipeline projects such as the Keystone XL, which couldn't be built without the use of eminent domain.

"I think it's fascinating that Cruz and Rubio are trying to use eminent domain to hit Donald Trump, yet both of them obviously support Keystone XL and I'm sure any other pipeline that you would ask them about," said Jane Kleeb, founder of the activist group Bold Nebraska. The organization fought the Keystone XL pipeline to carry Canadian tar sands oil to the Gulf Coast. President Barack Obama ruled against the final section of the pipeline from Alberta to southern Nebraska, though Trump and other Republican presidential candidates have pledged to approve the project.

"You can't have it both ways," Kleeb said. "Republicans are actually going to have to reconcile with this. Their entire conservative movement was based on rejecting the notion of using eminent domain for private gain, and yet when it comes to fossil fuel projects, they 100 percent support it."

The Cruz and Rubio campaigns did not respond to requests for comment. Trump told Fox News that eminent domain is "wonderful." He recently tweeted "without it we wouldn't have roads, highways, airports, schools or even pipelines."

Democrats may also have to address the issue. The campaigns of Hillary Clinton and Sen. Bernie Sanders (D-Vt.) haven't come out strongly against eminent domain. Neither campaign responded to questions from InsideClimate News about their position. Their silence may be because it would probably be necessary to use eminent domain to build large-scale renewable energy projects, according to Kleeb.

"I think why they haven't [taken up eminent domain] is because progressives typically want to see transmission lines built for solar and wind energy," Kleeb said.

Eminent domain is a powerful tool governments have long used for building things for the common good, like roads, airports and schools. Here's how it works: A government unit at some level ranging from city to county to state to federal condemns a piece of land for a public project and forces the owner to sell it to them, typically at a market price.

The practice becomes controversial, however, when this power is exercised for private interests such as builders of pipelines, football stadiums, casinos and hotels.

In the case of Coking in Atlantic City, the Casino Reinvestment Development Authority of New Jersey tried to seize her land for the Trump Plaza. Coking sued, and her case was taken up by the Institute for Justice, a nonprofit libertarian public interest law firm. She eventually won.

Cruz in particular has to walk a fine line when condemning the use of eminent domain.  His campaign has received $887,000 in campaign contributions from the oil and gas industry since 2015, more than three times as much as any other candidate, Republican or Democratic, still in the running, according to the Center for Responsive Politics, a Washington, D.C.-based nonprofit.  

"The Keystone pipeline, without eminent domain, it wouldn't go ten feet," Trump said in his defense in a Republican presidential debate.  

The attacks and counterattacks spotlight a persistent problem for Republicans especially, Kleeb said. As she successfully rallied Nebraskans to protest the Keystone XL, she found that opposition cut across party and ideological boundaries on the proposition of seizing privately owned land so that a foreign oil company, TransCanada, could run a tar sands pipeline from Canada to the Gulf Coast. The problem won't go away as diverse groups of landowners and environmental organizations are now coming together in states across the country to fight oil and gas pipeline projects that would seize their land.

Here is an ICN look at contested projects in five states that highlight the battle between property owners and oil and gas companies—and the dilemma facing political leaders, especially Republicans.

Massachusetts

Vincent DeVito, a former senior Energy Department official in the George W. Bush administration, represents Northeast Energy Solutions, a group of landowners and environmental organizations. The group opposes Northeast Energy Direct, a proposed natural gas pipeline that would pass through the Berkshire mountains of Western Massachusetts.

"Northeast Energy Solutions is not an anti-infrastructure group," said DeVito, an attorney with Bowditch & Dewey LLP in Boston and Washington. "We do believe Northeast Energy Direct is not part of the energy solution for the northeast United States. We do believe it's an export project and does not deserve the privileges of the Natural Gas Act."

The U.S. Natural Gas Act allows for the use of eminent domain for interstate gas pipeline projects. An economic analysis of the pipeline by London Economics International, a consulting firm commissioned by the Maine Public Utilities Commission, concluded that the pipeline would offer a net economic benefit only if the natural gas were exported.

Tennessee Gas Pipeline Co., a subsidiary of Houston-based Kinder Morgan Inc., is the company proposing the pipeline. Kinder Morgan, the largest energy infrastructure company in North America, said the pipeline isn't intended for the export of natural gas.

"Kinder Morgan has not executed any contracts for purposes of LNG [liquefied natural gas] exports," Kinder Morgan spokesman Richard Wheatley said in an email.

South Carolina and Georgia

In Republican-led South Carolina and Georgia, bills to block another Kinder Morgan pipeline have had bipartisan support in the states' legislatures. Last week, a bill passed 38-0 in the second of three readings in the South Carolina Senate that would place a five-year moratorium on unregulated petroleum pipelines by private companies. The measure was in response to the Palmetto Pipeline, which Kinder Morgan proposed building to transport refined petroleum products from Belton, South Carolina, to Jacksonville, Florida.

"There are a number of constituents in my district who were concerned about the possibility that the pipeline would be coming through their property, and they did not want the pipeline company to have the ability to take their property," said South Carolina state Sen. Tom Young, a Republican.   

Young, who sponsored the bill, said he expects a final reading. A similar bill that would  block pipelines is under review in the Georgia House of Representatives.

"For the state of Georgia in particular there is really very little, if any, benefit," said Elena Richards, spokeswoman for the environmental group Savannah Riverkeeper in Augusta. The pipeline would cross five major watersheds as it moves down the Georgia coast, she said. "It's a threat to our drinking water, our wildlife and our coastal habitats," she said.

Kinder Morgan said it is looking at all options for negotiating easements in South Carolina, Georgia and Florida on its Palmetto Pipeline project.

"It's important to find a route with the least impact to property owners and the environment, and we believe we will develop a solution that will benefit multiple stakeholders in the Southeast region," Kinder Morgan spokesman Wheatley said.

Tennessee

Landowners in Tennessee, also a Republican stronghold,  are fighting to block another Kinder Morgan project, a massive compressor station in Joelton. In this case, Kinder Morgan's Tennessee Gas Pipeline owns the property, but nearby residents are fighting the facility, one of the largest in the country, because it would be built next to a park in a residential area, raising concerns about air, water and noise pollution.

While this isn't a case of eminent domain, the project has at least one characteristic similar to the taking of land for pipeline projects, said  Lori Birckhead, president of activist group Concerned Citizens for a Safe Environment.

"This is, as with eminent domain, pre-emption of local law against the rights and will of the people and totally for the benefit of the corporation," she said.  

The Nashville Metropolitan Council, which has jurisdiction over Joelton, passed a city ordinance in August 2015 prohibiting compressor stations in non-industrial zones, including the proposed site. Similar legislation is pending in the state's house and senate that would prohibit building a compressor station within a mile of a public park. Local landowners, however, say the gas company won't heed local or state law.  

"They are practically scoffing at us saying this will be pre-empted by federal law," said Birckhead, a farmer whose property is 2,000 feet from the proposed compressor station. "What Kinder Morgan is saying is that it doesn't matter what your local law said. It doesn't matter what your state law said. We want this compressor station at this site and it will happen."

Kinder Morgan's Wheatley said the company isn't commenting on the legislation. The compressor station is part of a project for which the Federal Energy Regulatory Commission would have to issue permits under U.S. law.

Birckhead, a self-described "staunch Republican," said it's good to support businesses but not at the expense of people and the environment. Part of what Birckhead said upsets her is that the added gas production capacity enabled by the proposed compressor station would be exported.

In 2014, shale gas producer Antero Resources said it secured 100 percent of the project's added capacity, allowing it to "access Gulf Coast pricing hubs as well as international LNG markets."

"Customers and shippers determine where natural gas originates and where it is transported by our open access pipeline transmission subsidiaries," Kinder Morgan's Wheatley said. "We provide the capacity and transport gas from point A to point B."

Texas

Energy Transfer Partners, a pipeline company based in Dallas, is preparing to begin construction of the Trans-Pecos Pipeline, which would transport natural gas near Big Bend National Park to the U.S.-Mexico border.

"It's the crown jewel of the state, it's a national treasure, and they are about to just rip right through the heart of it without a second thought," said David Keller, landowner coordinator for the Big Bend Conservation Alliance. "If you own, operate or maintain a natural gas pipeline in the state of Texas, you have the power of eminent domain, period. It doesn't matter if it serves any U.S. customers or not."

Energy Transfer spokeswoman Lisa Dillinger said in a statement that the company intends to negotiate voluntary easement agreements with landowners, but she said, "we do have legal options available when this is not possible." 

Energy Transfer recently filed at least a dozen eminent domain lawsuits against landowners along the proposed 143-mile pipeline route, according to local news reports.

Keller said opposition to the pipeline spans the political spectrum.

"Within our group we've got people all the way from the Tea Party to left wing anarchists, it runs the full gambit," he said. "We make unlikely bedfellows, but we are all aligned for a common cause."

As for politicians who say they oppose the use of eminent domain, Keller said that doesn't apply to pipelines.  

"They'll talk 'til they are red in the face about eminent domain, but when it comes to protecting landowners against the oil and gas industry, you know what side they're going to be on," Keller said. "They will be on the side that pays their campaign bills."

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