Energy and Environment Reporting for Texas

Why Changes to Eminent Domain in Texas May Be Imminent

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The remains of a structure on the Gulf shore Galveston, Texas. Hurricane Ike changed the landscape of the region in September 2008.

Texans certainly have a love for private property. 95 percent of Texas land is privately owned. But earlier this week the state house Committee of Land and Resource Management heard invited testimony on a couple of situations that may call for Texas to take over a little more land by eminent domain.

Two Texas Supreme Court cases recently took on the eminent domain issues. In both cases, the Court ruled in favor of the property owners.  The first, Severance v. Patterson, considered beach front property and the Open Beaches Act, while the second, Texas Rice Lands v. Denbury Green Pipeline, looked into the form oil and gas companies fill out in order to condemn Texans’ private property for their pipelines.

The second case poses a more pertinent challenge for Texas representatives. Representative Rene Oliveira, chairman of the Land and Resource Management committee, says they must find a balance between landowner rights and the needs of the oil and gas industry. Currently, companies are required only to fill out a simple form, checking a box that says they’ll be “common carriers,” meaning they’ll allow other companies to use their pipelines.

“Fortunately, we haven’t had any, it appears, fly-by-night people getting common carrier status out there and taking advantage of that,” says Oliveira. “The testimony that we had that some landowners have 30, 40, 50 pipelines across their property, that’s something we also need to be looking at. If you’re going to be a common carrier, you should be out for hire and be able to ship other people’s product as well, especially when we’re talking about natural gas, CO2, and oil.”

Both landowners and gas companies are unhappy with the eminent domain process. Phil Gamble is a representative of the Gas Processors Association. He told the committee that getting the required permits is too painstaking for his clients. A line one of his clients wants to build is about 700 miles long. “It’s going to go through twenty-three counties,” says Gamble. “It’s not inconceivable that you could get different decisions from different courts along the way.”

Julia Trigg Crawford is on the other side of the argument. She owns land in northeast Texas that TransCanada— the company hoping to build the Keystone XL pipeline— has its eyes on. She thinks the process isn’t stringent enough. She says there’s no way to tell if the pipeline will be for public use.

“I don’t even have to ask my hairdresser if he can legally cut my hair because the state requires that they post their license for everybody to see,” Crawford says. “So why aren’t we requiring any real checks and balances for something that’s as important as the condemnation of land?”

Terrence Henry

Julia Trigg Crawford's land is at risk of being condemned by TransCanada.

Oliveira says the committee plans to hold several hearings to determine what the best process would look like. “I have requested, and it appears it’s going to happen, that all the stakeholders get together – the landowners, the farmers, the cattlemen, we probably need to get cities and counties involved as well as the oil and gas industry,” says Oliveira.

“I don’t think we can put this off for two years and leave that economic uncertainty out there,” Oliveira says. “We’ve got to do it in a safe way. We’ve got to do it in a legal way. And we’ve got to minimize the intrusion on landowners. I don’t think we can wait. We’ll have to address it in the session coming in January.”

But finding that balance will be difficult, Oliveira says. Either way, we’re likely to see reforms of the eminent domain laws in the near future.

Kelly Connelly is an intern with StateImpact Texas. 


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