Judge Pulls Spikes Off TransCanada’s Pipeline Tracks

via Wikimedia Commons

via Wikimedia Commons

TransCanada’s Keystone XL pipeline has been hurtling along and blowing through opposition like a runaway train. Opponents of the pipeline haven’t exactly been meek and mild but TransCanada has been able to roll right over them without so much as a bump.

Most of the opposition to the pipeline has focused on its obvious ecological demerits; the dirty fuel’s filthy extraction at the source in Alberta, the near certainty of a rupture, the consequences of fuel spills in the  Ogallala Aquifer, and the increase in global emissions. Those concerns have given way like wet Kleenex in the face of TransCanada’s political and financial clout. The State Department’s recent report on the pipeline’s impact certainly doesn’t look like it will produce much friction – its conclusion that pushing ahead with the project won’t have any significant impact on global emissions or the rate of oil sand extraction is hardly calculated to put the brakes on the project.

While TransCanada has been able to sweep the nation’s environmental groups aside, a single judge in Nebraska has succeeded in taking the sheen off the company’s aura of  invincibility. The Nebraska legislature, in its wisdom, recently passed a law placing the state’s power of eminent domain at TransCanada’s disposal. In effect, it forced landowners to sell their property to TransCanada by transferring the power to force such sales from the Nebraska Public Service Commission – where it had resided for more than a century – to Governor Dave Heineman.

Late last month, District Judge Stephanie F. Stacy took a long hard look at that law and decided to drag it out behind the barn and put a bullet in its head. The law, she said, was unconstitutional and void in that it divested the PSC of authority and bestowed upon the governor the ability to wield the power of eminent domain without the possibility of judicial review. In other words, it allowed the governor to grab Nebraskans’ land and give it to a foreign company for that company’s profit.

Nebraskans are an ornery and independent lot, and some of the ranchers over whose land the pipeline is slated to run didn’t take kindly to having the governor  snatch their property up in such an imperious fashion. Three landowners whose property was in the path of the pipeline filed suit. The judge’s decision went over very well with them. The attorney who handled their case had reason to crow, saying, “They thought the governor would be a rubber stamp and he was.”

For the time being, TransCanada will have to negotiate with every individual landowner along the pipeline’s route, a prospect that must not fill the company’s directors with delight; the ranchers in the pipeline’s path haven’t been sending TansCanada Valentine cards. The issue will surely be fed into the appeals system where it will grind along. But the delay won’t do the company any favors either. The administration is unlikely to act on the State Department report while the court’s clear this issue off the tracks – the delay is a perfect excuse not to act. And Nebraska isn’t the only state gumming up the works. The Texas Supreme Court recently handed pipeline opponents a major victory in ruling that TransCanada couldn’t avail itself of the right of eminent domain under the state’s “common carrier” regulations. “We’re thrilled,” said one of the plaintiffs fighting TransCanada’s land grab, “because the Supreme Court has finally ruled in favor of us—the little guys—and against a foreign oil giant.”

Nobody likes the idea of having their property taken and handed over to a foreign company so that company can make money off the property. The misuse of eminent domain has been a volatile issue ever since the Supreme Court’s Kelo v. City of New London opinion upholding a city’s use decision to use eminent domain to take property from one private owner for the gain of another private owner.

If Keystone is running into a buzz saw over the issue in deep red, oil-friendly states like Nebraska and Texas, it’s got more trouble on its hands than it might have reckoned with. TransCanada’s train may be running at full throttle, but the tracks might not be stable.

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