In 15 Words or Less: Texas Judge Upholds Keystone XL Condemnation

In addition to the other eminent domain issue that has been all over the news of late, the Keystone XL pipeline and the grant of eminent domain power to TransCanada for the project has been one of the big eminent domain story this year.

On Wednesday, a County Judge in Texas upheld TransCanada’s condemnation of private property owned by farmer Julia Trigg Crawford.  As reported in this NYT article, the ruling exposes a loophole in Texas’s oil and gas regulations allowing “common carriers” the power of eminent domain with oversight by the Railroad Commission.  In Texas, a common carrier is a company that allows its pipeline infrastructure to be open to any oil company willing to pay the published tariff rates.  In this case specifically, the Texas Railroad Commission skirted responsibility for oversight by asserting that TransCanada’s operations are interstate and, therefore, under the control of the federal regulatory agency.  And, there you have a loophole the size of Texas.

According to a statement by Ms. Crawford, TransCanada failed to produce proof that the company qualifies as a common carrier because it’s attorney did not produce a copy of its tariff rate schedule but rather argued that it would provide the tariff schedule at “about the time it gets ready to transport the product on the line.”  In other words, after the property has been taken and after the pipeline has been built.

Beyond the issue of whether TransCanada is truly a common carrier, this particular pipeline project has gained national attention due to the nature of the product which TransCanada wishes to transport: oil from the oil sands region of Alberta, Canada, which is referred to as tar sands oil.  Environmentalist in both the US and Canada have voiced opposition to the mining of tar sands for oil, the pipeline path that TransCanada had originally proposed through the Ogallala Aquifer in Nebraska and the potential for leaks or spills.

The recent ruling by Judge Harris upholding TransCanada’s power to condemn private property is newsworthy itself, yet the fact that the Judge sent it as a 15-word electronic message from his iPhone has added a little extra gusto to the story.  While the reality is that we may conduct much of our personal and professional lives from the palm of our hand using our smartphones, the fact that the Judge reduced the constitutional guarantee of private ownership which is protected by the Fifth and Fourteenth Amendments to the US Constitution and each and every state constitution to an abbreviated 15 word message stings just a bit too much.

While Ms. Crawford is “[d]isappointed that Judge Harris wholly dismissed our entire case with a 15 word ruling sent from his iPhone,” she has vowed to continue to fight for her own, her family and her fellow Texans’ property rights.

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