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In Keystone XL Turnaround, Texas Supreme Court Favors Landowner on Eminent Domain

In Keystone XL Turnaround, Texas Supreme Court Favors Landowner on Eminent Domain
Fri, 1/17/2014 - by Tar Sands Blockade
This article originally appeared on Tar Sands Blockade

AUSTIN, Tex. – The Texas Supreme Court on Wednesday ruled in favor of landowner Julia Trigg Crawford, ordering TransCanada to submit information by Feb. 6 as the justices weigh arguments to hear the case regarding eminent domain abuse.

Texas’s highest court delivered a clear victory for pipeline opponents and landowners fighting TransCanada’s overreach on property rights. At the heart of Crawford’s case is the ability of TransCanada, a foreign corporation, to use eminent domain under the state’s “common carrier” clause since their pipeline transports 90% Canadian tar sands and 10% North Dakota oil. There is no on ramp for Texas oil therefore violating the definition of a common carrier under Texas law.

Crawford said she looks forward to her family’s day in court. “As a landowner, property rights are key to my livelihood and family legacy," she said. "A foreign corporation pumping foreign oil simply does not qualify as a common carrier under Texas law. TransCanada does not get to write their own rules. I look forward to the Supreme Court hearing our case and our plea to protect the fundamental rights of property owners.”

The ruling on Wednesday from the Texas Supreme Court means that Crawford will be able to take the next step in the appeals process against TransCanada. The southern segment, also known as Gulf Coast Segment, stretches from Cushing, Oklahoma to Beaumont, Texas and carries tar sands or dilbit which is a combination of tar sands and chemicals that react very differently when spills occur than traditional Texas oil.

“We’re thrilled, because the Supreme Court has finally ruled in favor of us – the little guys – and against a foreign oil giant,” Julia Trigg Crawford continued. “Basically, TransCanada said that it wanted a waiver from responding to our petition, and the Supreme Court said, ‘No, you must respond’.”

Crawford said her case has broad implications because if she wins, TransCanada and other foreign oil companies will no longer be able to use eminent domain to seize land for their private profit without direct proof their pipeline is carrying Texan oil.

Reporting more thoroughly on Julia's story and her Stand Tall campaign, Anna Simonton of Yes! Magazine writes:

While the State Department mulls whether or not to approve the Keystone XL pipeline, TransCanada is already gearing up to start pumping bitumen extracted from tar sands in Alberta, Canada, to the gulf coast of Texas in January of next year.

The Canadian fossil fuels giant recently announced that it will inject an initial 3 million barrels of oil into the newly completed southern leg of the pipeline over the coming weeks. Activists are calling on regulators to halt the process, citing inspections that revealed numerous flaws in the infrastructure. While that could stall the project, a few pending court battles with Texas landowners are presenting a broader challenge to TransCanada's plans.

One of those landowners is East Texas farmer Julia Trigg Crawford, who in November petitioned to appeal a ruling in TransCanada's favor. If her appeal is accepted, her case will be the first on this issue to be heard by the Texas Supreme Court.

The trouble for Crawford started in 2008, when TransCanada offered her $7,000 for a lifetime easement across her pasture. This would give the company complete control over the land without owning it outright. She consulted with her father and siblings, all of whom have a stake in the farm. They decided to refuse.

Crawford says no amount of money would have changed her mind. Her family's decision was based on a strong connection to the land her grandfather purchased in 1948, she says, and concern for the indigenous artifacts that can be found all over the property.

Then Crawford began learning more about the diluted bitumen that would flow through the pipe and her concerns increased. "This is not your mother's everyday crude," she explained by phone in her matter-of-fact Texas drawl. "What's coming out of Alberta is corrosive, it's the consistency of peanut butter, and it's pumped at much higher pressures. When it spills in a waterway it does not float. It sinks to the bottom."

The details of how bitumen behaves in water are important because TransCanada's plan was to lay the pipe under the Boise d'Arc Creek, which Crawford uses to irrigate her corn and soybean fields.

"If that water is contaminated, it's going to flow straight down to my pumps," Crawford says. "There's been drought for the past two years in Texas. I can't do without water." Focusing on eminent domain reform

Crawford says her family has refused offers from pipeline companies before. All responded by changing their route to cross the properties of willing neighbors. Not so with TransCanada. When she refused their offer, the company turned around and filed for eminent domain rights with the Texas Railroad Commission.

"Eminent domain" refers to situations in which the government or a corporation can seize a person's land even if they are not willing to sell it because the planned project is deemed a public good. If a company plans to build infrastructure that will be used by the public or made available to other businesses for a fee, that company is considered a "common carrier" and, under Texas law, can be given the authority to take land through eminent domain.

That might sound reasonable enough in theory. But in practice the Texas Railroad Commission has no process for determining whether a company actually meets these standards. According to Crawford, TransCanada simply filled out a form, checked the box marked "common carrier," and was approved to condemn her pasture. (In the legal terminology of eminent domain, a company's move to take land is referred to as "condemnation." A PDF of TransCanada's letter of condemnation in reference to Crawford's farm can be viewed here.)

Since then, Crawford has made her way through the lower courts, arguing that TransCanada is not a common carrier. In August, an appeals court sided with the corporation, prompting Crawford to file an appeal to the Texas Supreme Court.

Wendi Hammond, an environmental lawyer representing Crawford, says a big part of what they are seeking is legislative interpretation.

She says eminent domain has made it "extremely easy for private corporations to take Texans' land without really having to prove anything." She wants the court to consider whether that's what Texas legislators intended when they wrote the laws defining eminent domain in 1917.

Although the case is still pending, TransCanada began construction on Crawford's pasture in May. The company's security guards "popped up like whackamoles" from behind vehicles, Crawford says, videotaping and photographing her as she went about her daily routine.

Now that portion of the pipeline is in the ground and the workers have disappeared, leaving behind porta potties and construction materials without any promise of cleaning up. A pipeline in pieces

"A lot of people don't know that this Texas leg is already being built," Crawford says, referring to the common misperception that the entire Keystone project depends on TransCanada receiving a presidential permit from Barack Obama.

In actuality, the 3,812 miles of pipeline that will carry 830,000 barrels per day of bitumen from Alberta, Canada, to the Gulf Coast consists of multiple segments in various stages of development.

The existing Keystone pipeline runs from Alberta to Cushing, Okla. (with a fork along the way that goes east to Illinois). The recently completed southern extension connects to the Keystone in Cushing and tunnels through East Texas on its way to refineries along the coast. The proposed northern extension—the only part of the project that requires a presidential permit—would create a shortcut to Alberta across Nebraska, South Dakota, and Montana.

TransCanada has distinguished the two extensions to the Keystone as two separate projects, calling the northern extension "Keystone XL," and the southern extension the Gulf Coast Project. This decoupling of the project is what has allowed TransCanada to make headway, according to Susan Casey-Lefkowitz at the National Resources Defense Council.

The Keystone XL requires State Department approval because it crosses a national border, while the Gulf Coast Project does not because it's entirely within the United States. Last year, President Obama asked TransCanada to expedite construction of the southern extension. The company simultaneously laid pipeline across East Texas and pumped diluted bitumen to storage tanks in Cushing, so that the extension could become active immediately upon completion.

In building the southern leg, TransCanada has used eminent domain to take property from at least 89 Texas landowners. That's according to Debra Medina, founder of the nonpartisan, Tea-Party-leaning organization We Texans. Medina searched court records from every Texas county that the pipeline will traverse, counting the petitions of condemnation TransCanada filed.

Medina doesn't know how many landowners tried to challenge the corporation—only four cases have moved beyond the county courts and received wider attention. Before Crawford's case, only one had gone as far as an appeal to the Texas Supreme Court. It was denied in April.

Crawford acknowledges that she doesn't expect to win her lawsuit, despite a promising precedent set last year. In a case brought by a Texas rice farmer against the pipeline company Denbury Green, the Texas Supreme Court ruled that the company was not a common carrier and did not have the right to use eminent domain.

But the case differs from Crawford's in that Denbury Green was building a pipeline to transport natural gas, which is subject to different rules.

Hammond shares her client's assessment. Yet they aren't discouraged. For Crawford, keeping up the fight is a matter of principle. She says her family agreed from the outset that as long as they had enough money in their legal coffer, they would continue to seek justice.

For her part, Hammond says it's best to understand the role of the case in the larger context of environmental law.

"You may not necessarily win your particular battle in court but overall you might win the whole war," she says. "You increase the dialogue so other people understand what is going on." Staying energized

The dialogue around eminent domain In Texas is certainly picking up speed. The last legislative session saw three bills that would have changed the application process for companies seeking common carrier status. None passed.

Crawford, Hammond, and other advocates are confident that the necessary reforms will eventually be enacted if they keep up the pressure. While it's likely too late to stop the southern extension of the Keystone, such reforms would at least ensure that companies in the future are regulated more strictly than TransCanada has been.

Meanwhile, Crawford has aligned herself with activists in Nebraska, traveling there to speak at the groundbreaking for a wind and solar powered barn, which activists and landowners built directly in the proposed path of Keystone XL. The barn will serve as a meeting space for farmers to learn about using renewable energy in their agricultural practices. Crawford hopes that sharing her story with other landowners empowers them to challenge TransCanada's use of eminent domain and to stop the pipeline altogether.

By standing her ground, Crawford has inadvertently become a leading voice for pipeline resistance. She has spoken at conventions, press conferences, protests, and even on Capitol Hill, where she testified before a House committee that is considering a bill to reform federal eminent domain laws. Crawford opposes the bill because it makes an exception for companies that are building pipelines.

Though her reserves of energy and passion run deep as a Texas oil well, managing a farm while fighting a major lawsuit and building a grassroots network adds up to an exhausting workload. On days when she feels like quitting, she says she pulls a thick binder down from a shelf in her office.

She pages through the binder, where she has kept every email, letter, and post-it-note she's received since beginning her campaign, along with photocopies of checks signed with imperatives like, "Kick ass and take names!"

Over the past few years, she says, she has raised more than $100,000 to cover her legal fees, mostly from individuals in amounts of $5, $10, or $20.

She remembers when a heavily creased letter, written in pencil in a scrawling cursive hand, arrived along with eight dollars and some nickels and dimes.

"I am sure you are familiar with Dr. James Hansen's dire predictions for the future should this pipeline go into operation," wrote the letter's author. "As a person hoping to live in said future, I am indebted to you."

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