Air Date: Week of February 24, 2012

Protestors gathered outside the Texas Railroad Commission, which oversees eminent domain decisions. (Photo: We Texans)

Though the route of Keystone pipeline has not been approved, Canadian pipeline company TransCanada has claimed eminent domain rights to cross private land in Texas. Some landowners are fighting this. Dave Breemer, a property rights attorney with the Pacific Legal Foundation, tells host Bruce Gellerman that private companies can gain rights to private land if it’s for “public use.” Debra Medina, the director of the grass-roots, property defense group, We Texans explains why you don’t mess with Texans.

Transcript

[THE CHANTING SOUNDS OF A PROTEST]

GELLERMAN: The scene is mid-February - on the steps of the Lamar County Court house in Paris, Texas.

[PROTEST SOUNDS "Don't mess with Texas"]

GELLERMAN: Protesting against the proposed Keystone XL Pipeline was an unlikely coalition of environmental groups and Tea Party, libertarian types. The company TransCanada wants to build the pipeline to carry crude oil from the tar sands of Alberta -17 hundred miles to refineries on the Gulf Coast. President Obama put construction on indefinite hold pending an environmental review, but inside the Lamar courthouse, lawyers for Texas landowners were fighting to prevent TransCanada from taking their property for the pipeline by eminent domain.

The practice is permitted by the US Constitution but the Texas judge handed landowners a temporary injunction halting construction. It’s just one of several, similar lawsuits in the Lone Star State. Leading the charge against the taking of private property by a private company is Debra Medina. She’s a former Republican candidate for governor and head of the property rights group “We Texans.” Also joining me from Sacramento California is David Breemer an eminent domain attorney with the Pacific Legal Foundation. Hi Debra.

MEDINA: It’s good to be with you, Bruce.

GELLERMAN: And David Breemer, welcome to Living on Earth, too.

BREEMER: Thank you.

GELLERMAN: Let's start with you Debra- you’re against the pipeline. Why?

MEDINA: I’m against the use of eminent domain for private business.

GELLERMAN: What do you mean?

MEDINA: The law is very clear that those pipelines must serve a public purpose. So, what happens in practice is that those pipelines cloak themselves in that regalia, and they like to do that because then they have the power of eminent domain, and they can just take the property that they deem they need for their business. And we believe that’s exactly what’s happening here and there’s a bit of controversy over that.

GELLERMAN: Well, Dave Breemer, you’re a bit of an expert in eminent domain issues - help us out.

BREEMER: Ultimately, it comes down to the question of whether a project is serving a public use, really providing a public benefit, rather than simply a private one. This specific question about TransCanada - it’s a very hard question.

It looks, in a lot of ways, like other things that have always been allowed as public uses like utilities - cable companies, power companies, there’s easements all over the place of these things buried underground that were taken by eminent domain. But this case is strange in my opinion because the pipeline hasn’t even been approved and they’re going around taking people’s property, and I think that gives it a whole new gloss where something doesn’t smell right.

MEDINA: I think that’s one of the things that’s been most eye-opening for the landowners, if you will, I think many of them suspected that once the Presidential permit was denied that the eminent domain takings would cease. So we’ve got a recent Supreme Court case from August of last year - the Denbury Green Pipeline case - where the Supreme Court found for the landowner, saying that the pipeline company that had exercised eminent domain was in fact a private business not serving the public interest, and therefore should not have had the ability to use eminent domain to take property.

We’re anxious to see that similar question raised in the TransCanada Keystone XL case, unfortunately, you’ve got a multi-billion dollar pipeline company that has a very sophisticated legal team, and it’s very difficult for landowners to amass the resources to get themselves into court to fight that fight.

GELLERMAN: So the question is public use. I’m reading something from the President of the Greater Port Arthur Chamber of Commerce. And Port Arthur is where the refineries of the oil would be used on the Gulf Coast. And, he says this - ‘There’s not a politician in Texas, in their right mind - I don’t care if you’re a Democrat or a Republican - that doesn’t know the importance of this to all of Texas.’ I mean, I looked at some of the economic breakdowns, they’re taking about two billion dollars of economic value in terms of jobs. So, isn’t that, you know, a public good?

BREEMER: Well, I would say that there is a very good chance that it would be seen that way by a court. Those are all good things, and we are in favor of development, so, again the standard is very loose. The public use standard is very loose. However, as far as I know, it has never permitted a government or a private company to condemn land for a project which may never actually be approved.

Lost in all this is the fact that owners have to be fully and justly compensated - even if it is a public use - there's got to be full, just compensation. And a lot of times what happens in these types of cases is the property owners are low-balled. They’re told that they’re going to be compensated and they’re offered a very, very low price.

GELLERMAN: So, Debra Medina, is this just a negotiating strategy to get a better price?

MEDINA: We haven’t heard that. Most of the objections that we’re hearing are involving the terms of the contract, rather than the price. The landowners are being told, for example, that they can’t move heavy equipment over the top of the easement - once the pipeline is buried, they can’t drive a tractor, they can’t drive anything heavier than a four-wheeler over the top of that buried pipeline.

One particularly property says: ‘I’m a timber company, I cut and harvest timber off of this property, and we’ve had a drought in Texas, we’ve had forest fires here. If there’s a fire, I need to be able to move bulldozers and fire trucks and I can’t be prohibited from doing that - it wouldn't be safe.’ The company said, ‘Well, we won’t allow that.’ And the gentleman said, ‘Well, then, you’re going to have to go around my property.’ And they said: ‘No, we won’t - we’ll condemn it.’ And they have. They’ve condemned his property - they’re going through his property, and they’d like the terms to be that he can’t drive anything over the top of that pipeline.

GELLERMAN: Are there other environmental concerns that you might have there Debra?

MEDINA: I think from landowners, we’re hearing a number of those sorts of concerns- one gentleman has 66, one hundred-year-old trees that are going to be removed from his property in order to clear a path. And safety concerns. People want to know about possible water contamination - the company has had some leaks on the Keystone 1 and they’re concerned about that. So landowners come to the table of these negotiations with varied concerns, and unfortunately, many of those landowners have met with an obstinence from this company and an unwillingness to address these concerns. And so you have 89 - at least 89 - eminent domain cases here in TX that we've been able to document here today.

BREEMER: You have to remember, eminent domain is an extraordinary power. It’s always disruptive. And most people’s primary concern at first is not money - their primary concern is keeping the use of their property and the enjoyment of their property. That is how it’s always been when you look at the railroads that were given the power of eminent domain in the 19th century to put rails across the United States - the same concerns came up there too.

GELLERMAN: Debra, is this a case of very strange political bedfellows - the Tea Partiers have come out against the pipeline on the property issues and eminent domain, so have libertarians, but so have environmentalists.

MEDINA: It is an interesting coalition. We’re all coming to the table, I think, from different concerns, but we see overlap and common concern here is the behavior by this company - the way it’s treating Texans. Whether it’s citizens who have environmental concerns or private property concerns and so it’s drawing those folks together to say - we don’t like the way you’re doing business here in our state, or attempting to do business here in our state. And they’re gong to meet some resistance until either their behavior changes or they are able to address the concerns that Texans are raising.

GELERMAN: So, David, when all is said and done in this case, what do you think is going to happen?

BREEMER: I think it’s a close call. The law is not on the side of property owners in this case, unfortunately, in this area. So, if the project is approved, it’s probably a public use under current law. If it’s not approved, that’s a strange situation.

GELLERMAN: Debra, I’ll give you the last word, if you’d like.

MEDINA: Don’t mess with Texas, Bruce!

GELLERMAN: Debra Medina is director of ‘We Texans’- it’s a public policy advocacy group in Wharton, Texas and Austin. Debra, thank you.

MEDINA: Thank you, Bruce.

GELLERMAN: And David Breemer is a property rights and an eminent domain attorney with the Pacific Legal Foundation in Sacramento, California. David, thank you.

BREEMER: Thank you, Bruce.

GELLERMAN: We received a written response from TransCanada - the pipeline company says: ‘the temporary restraining order is without merit and the eminent domain process permits them to use the land in Texas.’ Quote: ‘Our commitment is to treat landowners with honesty, fairness and respect, to work with them and come up with the best possible solution.’

 

Links

The Pacific Legal Foundation represents private property rights

We Texans protests the Keystone pipeline taking private property

TransCanada argues that they economic benefits of the pipeline meet a “public good”