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Pipeline Politics
Another Keystone Challenge?

TransCanada, developer of the controversial Keystone XL pipeline, filed a number of eminent domain claims this week in an attempt to secure the last remaining miles for the proposed project’s path across Nebraska. Keystone’s path across Montana and South Dakota is set, but the Nebraskan portion was challenged in court, and ultimately approved by the state’s Supreme Court last week. Now, TransCanada is invoking eminent domain to clear the last remaining holdouts along the pipeline’s path. The Guardian reports:

By law, TransCanada can use the courts to force Nebraska landowners to sell access to their land. Company officials say they still need to acquire 12% of the total land easements from owners who have not yet reached a deal. Some holdouts have said they will not negotiate no matter how much TransCanada offers.

It’s unclear how this will all shake out, but it does look like the President will be given yet another reason to delay his decision on the pipeline, as lawsuits and a Nebraskan state legislature challenge seem ready to slow down the already glacial pace of Keystone’s approval process:

In the two lawsuits filed last week – which could delay the entire 1,179-mile Canada-to-Nebraska project – seven landowners in Holt and York counties said they had received written warning that TransCanada intends to initiate eminent domain proceedings. […]

Nebraska lawmakers may debate the issue again this session. State senator Ernie Chambers introduced a bill on Tuesday that would repeal the pipeline-siting law and bring the project “to a virtual standstill”.

This is why we can’t have nice things, America.

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  • wigwag

    Is anyone at Via Meadia old enough to remember the Supreme Court case of Kelo v City of New London? It was decided only nine years ago by the Court in a divided 5-4 decision. In Kelo, the Supreme Court allowed the developer of a shopping mall to exercise eminent domain to force homeowners out of houses they had occupied in some cases for decades. The Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible “public use” under the Takings Clause of the Fifth Amendment. The Court’s conservative wing, including Justices Rehnquist, Scalia, Thomas and O’Conner wrote a blistering dissent claiming that eminent domain should not have been granted and that doing so violated the takings clause.

    Conservatives went ballistic; the decision was excoriated by Republicans ranging from ultra-rigt wing Tea Party types (the Tea Party movement didn’t actually exist then) to moderate Rockefeller Republicans. Republicans correctly viewed forcibly taking Americans’ property against their will so that private developers would benefit as an anathema. It was liberal democrats who supported the Court’s decision.

    Now it appears that the shoe is on the other foot. Undoubtedly left wing opponents of Keystone will be shouting from the rafters how terrible it is to expropriate private property from mostly middle class land owners so the Koch brothers and other wealthy pipeline developers can make a killing. Conservatives, who were apoplectic at the thought of private developers expropriating property so they could be enriched, will almost certainly be as quiet as church mice about what a mere nine years ago they would have viewed as an abomination.

    • J K Brown

      I’ll take the polite view that you misunderstand the difference between Kelo and eminent domain for such things as pipelines, waterlines, electrical lines, etc. In New London, the eminent domain was used to take ownership and control of the land for speculative development based on the presumption of “public use” from higher tax revenue. As it turned out, the city lost out on their speculation and the tax revenue from the pre-takeover uses.

      Keystone, however, is far more aligned with traditional eminent domain as it was enshrined in the Constitution. The landowners are not having their land physically taken and turned over to another for speculative development. They would be forced, for a fee at market rates, to grant an easement for the pipeline to cross their land, underground, and access to the easement to pipeline owners for maintenance and repair. Non-interfering uses of the land are not prohibited. I have one of those across the back of my property for high tension power lines. I presume eminent domain was used if the right of way couldn’t be purchased outright but that was probably in the ’40s or ’50s. As for ‘public use’, it is true that the pipeline owners will earn a tariff on oil transported, and the oil owners will earn a profit. But the oil will provide benefits to the public and not just through speculative city taxes. The oil will enter the global commodity market thus help to keep energy prices lower. It will be available for national security use in times of emergency. The pipeline will be a safer mode of transport than the currently used trains and possible future uses of barges.

      • wigwag

        “But the oil will provide benefits to the public and not just through speculative city taxes. The oil will enter the global commodity market thus help to keep energy prices lower.” J.K. Brown

        The impact on the price of oil of the product transported by the Keystone pipeline (which I support, by the way) is entirely speculative. As a matter of fact, the price of few commodities are as speculative as the price of oil as recent events have demonstrated.

        Most conservatives would argue that eminent domain, if it is permitted at all, should be scrutinized very strictly and utilized only in rare instances where a significant public benefit is likely. Reasonable people can disagree, but it is easy to suggest with a straight face that this is not the case with Keystone. Many people would argue, and not without good reason, that the benefits from the pipeline accrue mainly to the Canadian companies producing tar sand oil and the pipeline companies transporting it.

        It has also been argued, especially by Via Meadia, that this oil is coming out of the ground anyway. The Canadian Government has publicly discussed the option of building a pipeline through Canadian territory with a terminus in British Columbia. That suggests that there is an option for bringing this oil to the world market without violating the property rights of Nebraskans. Given this option, a genuine conservative would argue that expropriating the property of Americas through eminent domain is indeed a violation of the takings clause because a reasonable and less intrusive option exists.

        Finally, you mention the high tension line passing through your property. Unless you know whether the previous property owner voluntarily granted the easement on which the high tension wire sits or whether it was forcibly taken by eminent domain, your personal situation has no bearing on the question at hand.

        As for your personal feeling about how burdensome an encumbrance the high tension wire on your property is, your view is mostly subjective. There is little actual evidence that high tension wires are harmful to health. The same thing is not true of leaky pipelines and like all pipelines, the Keystone pipeline could easily leak.

    • Josephbleau

      The heritage foundation does not need to approve the pipeline.

  • Josephbleau

    Since the only reason the state department must approve the pipeline is that it crosses a border I think I have a solution that will satisfy in true government simplicity. us and Canadian companies build pipelines to 500 feet from the border. Then build a circular railroad track 1000 feet in diameter centered on the border. Place tank cars and locomotive on track and fill one car in Canada while sucking one dry in US. Every time the locomotive crosses the border a guard would stamp the engineer’s passport. This
    would be more practical than any governmentocentric solution.

  • Fat_Man

    “This is why we can’t have nice things, America.”

    When the last lawyer is strangled with the entrails of the last environmentalist.

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