Property Owners’ Frequently Asked Questions About the Keystone XL Pipeline

If you own property on the proposed route of the Keystone XL Pipeline, it is important to understand your legal rights. Below are answers to some frequently asked questions about the Keystone XL Pipeline. You can also read our answers to frequently asked questions about eminent domain.

1. What is the Keystone XL Pipeline?

The Keystone Pipeline is an oil pipeline system that runs from the Western Canada Sedimentary Basin in Alberta to refineries and distribution centers in Illinois, Oklahoma and Texas. Commissioned in 2010, the pipeline has been subject to intense debate with regard to its environmental impact, long-term viability, and impact on property owners across America.

While the original Keystone Pipeline was completed in 2010, the Keystone XL Pipeline project has been proposed to construct a second, route from Alberta to Texas passing through Montana, South Dakota and Nebraska.  Keystone XL will connect with the Keystone Pipeline in Steele City, Nebraska, and

2. How Does Eminent Domain Fit Into the Keystone XL Pipeline Discussion?

Eminent domain is the power held by federal, state and local governments to take (or “condemn”) private property for public use. However, the government also has the authority to grant the powers of eminent domain to private corporations undertaking projects for the benefit of the general public.

Viewing the Keystone XL Pipeline as an important public works infrastructure project, Montana and South Dakota have authorized the exercise of eminent domain to acquire the private property needed for the pipeline’s construction.  A Nebraska district court judge issued a temporary injunction on February 12, 2015, halting TransCanada’s efforts to acquire easement rights from Nebraska landowners for the Keystone XL pipeline through eminent domain proceedings.

The use of eminent domain is limited by the Fifth and Fourteenth Amendments to the U.S. Constitution. The Takings Clause of the Fifth Amendment places two requirements on the Federal Government’s exercise of eminent domain power: (1) the property must be acquired “for public use,” and, (2) the taking authority must pay “just compensation” to the owner of the property acquired. The Fourteenth Amendment extends the limits of the Takings Clause to state and local governments’ use of eminent domain.

3. Can TransCanada use Eminent Domain to Take Private Property for the Keystone XL Pipeline?

Yes. TransCanada has been granted eminent domain power to acquire private property for the construction of the Keystone XL Pipeline in Montana and South Dakota.  However, there have been numerous legal challenges to TransCanada’s use of eminent domain and private property owners’ constitutional rights.

Subject to regulatory and government approvals, utility companies – including foreign utility companies such as TransCanada – can exercise eminent domain in order to undertake large-scale infrastructure projects benefitting the public.

4. Have the Courts Prevented any Eminent Domain Takings Relating to the XL Pipeline?

Yes. Earlier this year, OCA Nebraska Member Bill Blake wrote about a case in Nebraska in which the judge issued a temporary injunction disrupting the progress of the Keystone XL Pipeline.  There have been similar court cases along the pipeline’s route as well.

Of course, not all property owners’ challenges have been successful. For example, in 2012 a Texas farmer lost her bid to avoid condemnation to make way for the Keystone XL Pipeline.

5. What Should I Do if I Receive a Condemnation Notice Relating to the Keystone XL Pipeline?

If you receive notice that TransCanada is seeking to condemn your property for the Keystone XL Pipeline, contact an eminent domain attorney to learn more about the eminent domain process and how to protect your property rights. Owners’ Counsel of America is a network of experienced eminent domain attorneys dedicated to defending the rights of private property owners across the country.

Contact Owners’ Counsel of America Today

For more information about protecting your property against the exercise of eminent domain, contact Owners’ Counsel of America today.

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