Courts Wrestle With Pipeline, Property Rights
In a Beaumont courthouse today, Judge Tom Rugg will rule on yet another case concerning TransCanada.
The pipeline company has been visiting a lot of Texas courthouses lately. At issue again is whether it can take private property in Texas to build the Keystone XL Pipeline, and more cases like this are expected. Judge Rugg says recent rulings on eminent domain in Texas mean nobody is quite sure where private property rights end and a company’s right to take property begins.
“It’s opened up a real can of worms and I’m not sure how it’s gonna get resolved,” Rugg said.
But that doesn’t mean state lawmakers won’t try to resolve it.
State Rep. Rene Oliveira chairs the House Land and Resource Management Committee. At a panel discussion last week he talked about how the debate over pipeline companies and private property starts with a one-page state government form.
“Called a T-4 or something like that,” Oliveira said. “Sounds like something out of the Terminator movies.”
Now the T-4 might not be as frightening as robots taking over the world. But for a lot of property right advocates, it comes kind of close. You fill it out and…
“That’s all you had to do and basically you would become a common carrier and you could build pipelines all across the state of Texas,” Oliveira said.
That is until a recent decision by the State Supreme court. It found that the T-4 does not ensure pipelines will hire their services out to carry materials for whoever can pay. That is, after all, what “common carrier” means. If the pipelines can’t prove they’re common carriers, that means they might not have the right to take land. That brings us back to the whole “can of worms,” Judge Tom Rugg was talking about.
“That decision has left a lot of unanswered questions,” Rugg said, “and so there are a lot of legal issues that will have to be sorted through over the next few years.”
In the State House it’s Rep. Oliveira’s committee that’s doing the sorting through. He’s already heard plenty of suggestions for how to reform eminent domain laws. You could have a state agency map out a pipeline’s course, an idea the industry hates. There could be some kind of hearing to figure out if a pipeline should take land in the first place. Then there are those who want to do away with a company’s ability to use eminent domain at all. Olivera says with so many competing ideas, even if a bill is passed, it’ll be sure to disappoint most people.
“It’s a lose-lose bill to carry, and I may be carrying it,” Oliveria said.
There are some small areas of agreement. At that same panel where Olivera spoke, pipeline industry representatives said they are sick of facing lawsuit after lawsuit challenging their use of eminent domain. It’s something that could be crippling in the midst of the oil and gas boom. So James Mann, a lawyer for the Texas Pipeline Association, said maybe pipelines could do more than fill out a form to prove they have the right to take land at the outset.
“We don’t mind proving it,” Mann said. “We’d like to prove it just once and we’d like to prove it before we start building pipelines.”
But there’s also a question of exactly how much the legislature can even do to reform the laws. Back in Beaumont, Judge Rugg says he’d like to see lawmakers fix the system.
“I think that’s difficult because of the constitutional protections that are afforded property owners in Texas,” Rugg said. “So a legislative solution may not as a practical matter be able to be accomplished without having a constitutional amendment election.”
And until that happens, he says, the question of who gets to take land in Texas will continue to play itself out in the courts.