Energy and Environment Reporting for Texas

This Land Was Your Land, Now It’s Our Land: Keystone XL and Eminent Domain

Photo by Mose Buchele/StateImpact Texas

Rail is being laid down to bring oil in and out of Port Arthur, Texas.

Dave Fehling of StateImpact Texas and David Barer of KUT Austin contributed reporting to this article.

It’s not often you find the Tea Party and environmentalists on the same side of an issue. But both are busy this week protesting the Keystone XL pipeline, a 1,700 mile-long project that would bring oil harvested from sand pits in Canada to refineries on the Gulf Coast of Texas.

The environmentalists sent over half a million “anti-Valentines” proposing the pipeline to Congress, which is┬ámaneuvering┬áthis week to overrule the President’s denial of the pipeline.

The Tea Partiers, on the other hand, held a series of press conferences across the state, alleging that the company behind the pipeline is using eminent domain to force landowners to allow the line to be built on their property. The activists have joined forces with other political groups and several landowners who have refused to give the company building the pipeline, TransCanada, permission to go through their land.

Julia Trigg Crawford is one of those landowners. Her family has had a farm in Lamar County, northeast of Dallas, since the forties, where they grow soybeans, corn and wheat. A few years back, TransCanada approached her family about running the Keystone XL pipeline through her farm. “Well, we didn’t sign initially, and it’s kinda drug on and on,” she told StateImpact Texas. “Each year they sent another letter saying there’ll be more money to kinda sweeten the pot.”

But Crawford refused to sign.

She says she looked into some environmental issues with the pipeline and how it would go through her farm and wasn’t on board. “One of my first concerns was, to go the path they had planned, they had to horizontally drill under the creek that I have water rights to,” Crawford told StateImpact Texas. “So, I didn’t exactly want this sludge being pumped underneath the creek.” Crawford also said that if the pipeline was buried underneath her property it could create a “vegetative dead zone” for her crops, because the temperature of the line can get up to 140 degrees, she said.

After Crawford repeatedly refused to allow TransCanada onto her land, the company sought eminent domain last fall. While eminent domain is typically used by governments to build public projects like roads, in Texas the legislature grants the right to pipeline companies, too. In this case, the┬áRailroad Commission of Texas, which oversees drilling and pipelines in the state,┬áapproved the company’s request that the pipeline be considered a public project and eligible for eminent domain. Now Crawford says it could be just weeks before they begin building the pipeline on her land. (TransCanada disputes this, saying that they still need a permit for the pipeline.)

TransCanada says they’ve settled all but 20 of the 80 eminent domain cases they’ve filed in Texas since beginning the pipeline project, and that they pay “at least” market value for the land, if not more. They have agreements with over 1,400 landowners in the state and aim to be “good neighbors” with landowners. “We’ve acquired 97 percent of the easements in Texas,” TransCanada spokesperson Jim Prescott said in an interview with StateImpact Texas last month. “So, we’re ready to go. We were ready to go a year ago, frankly, on this┬áproject. We’re ready to start putting pipe into the ground.”

But how exactly did a private pipeline company win eminent domain? TransCanada said the company was a public “common carrier” pipeline and not a “private line” in their petition to the Railroad commission. As Dave Fehling of StateImpact Texas reported Monday, this reasoning is being used by other oil and gas pipeline companies to gain easements over private property in Texas. In the case of TransCanada, they argued that since the oil passing through the pipeline would ultimately be used by the public, then the pipeline itself was a “public” pipeline, even though its privately owned and operated.

Map by the Department of State

A map of where the Keystone XL pipeline would go through Texas

But some landowners and Tea Partiers have fought back against that reasoning, and in August the Supreme Court of Texas sided with them in the case of Texas Riceland Partners vs. Denbury Green-Pipeline Texas. As we reported Monday, the court found that the “only independent authority judging whether the pipeline was public or private was the┬áRailroad Commission of Texas, which issues permits to pipeline companies. But the court found that the commission does nothing to investigate a claim of public use.” The court found that the commission simply relies on a form filled out by the companies, where all they have to do is check a box saying whether it will be public (a designation of “common carrier”) or private.

The commission says they only decide whether or not the project can be qualified as being for public use. “Eminent domain issues are a private party issue,” John Tintera, executive director of the commission, told StateImpact Texas. “Beyond that “common carrier” declaration, the role of the Railroad Commission is limited after that.”

After the opinion by the Supreme Court of Texas, the oil and gas industry has been fighting to overturn it. (You can read more about those efforts in our earlier report, Pipeline Companies Fight for Right to Take Property.) Justices at the court will meet this week to reconsider the decision. As Dave Fehling reported, they may “decide if they will let their opinion stand or if they should change portions of it to clarify their position. They could also agree to re-hear the case, which would be rare. That happens only once or so a year in the dozens of cases decided by the┬áCourt.”

But Crawford and some other holdouts may not go quietly. While the Supreme Court of Texas revisits the decision, she’s filed a┬átemporary┬árestraining order against TransCanada in Lamar County.

Read the full opinion by the Supreme Court of Texas, Texas Riceland Partners vs. Denbury Green-Pipeline Texas, here:


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