Can a Canadian pipeline company condemn land from Nebraska farmers and
ranchers to pipe Canadian crude oil to the Gulf for transport overseas?
Can it do so before it has a pipeline permit? Does TransCanada have the
cart out ahead of the horse?
Can the Nebraska Legislature delegate the power of condemnation to a private
Can millions of barrels of crude oil safely flow through metal pipes bolted
together at 20 foot lengths? Should Nebraska rethink the risks to its
aquifer in light of TransCanada’s oil spill at Cogswell ND, last week?
And, are affected landowners able to group their common interests together
to get answers to these questions?
These concerns and more prompted Domina Law Group pc llo to undertake an
investigation of the proposed TransCanada Keystone XL pipeline. “We
have not made a decision about whether a lawsuit will be filed for a group
of landowners yet. But the questions are troubling”, David Domina,
a lawyer with the Nebraska trial practice firm, said on Thursday.
Domina Law Group’s investigation follows contacts made by “a
number of concerned landowners whose property would be affected by the
pipeline.” Domina continued, “TransCanada’s threat to use
eminent domain under the authority of a Nebraska statute permitting pipeline companies
to do so with no checks on their authority, is a real concern. Does this
mean any foreign company from any nation can announce a pipeline project
and condemn Nebraska land even if the company serves the interests of
a nation out of favor with our own?”
Eminent domain, or condemnation is a power reserved for the state or federal
governments by the Fifth Amendment to the U S Constitution. “Companies
building public utilities, like railroads, and telephone or electricity
companies can condemn for the public interest”, Domina said. “But
trucking companies cannot condemn to build new roads or highways where
they would like. We wonder what the legal limit is for a foreign pipeline
TransCanada is threatening to build its second pipeline across Nebraska.
The first, built in 2009 crosses the State east of U S Highway 81.
TransCanada has not issued documents disclosing any public benefit to Nebraska
from the proposed pipeline.
Many concerns about the pipelines route and safety have been raised by
state officials. The proposed Keystone XL pipeline would begin in Hardisty,
Alberta and run to refineries near the Gulf Coast passing through Nebraska
along the way.
There are worries this project would leave many landowners at risk due
to possible oil spills such as the one that occurred on May 10, 2011 at
a pumping station near Cogswell, N.D. Oil contamination of the soil can
involve massive cleanup costs that must be borne by the landowner under
federal environmental laws.
Interplay between the proposed pipeline location, construction and depth
and geography, often within the aquifer and below the water table, and
construction or maintenance risks to fragile Sandhills soils present special
challenges that are unique to Nebraska that must be addressed, stated
Brian E. Jorde, a lawyer for Domina Law.
Domina and Jorde both expressed “real concern that TransCanada is
threatening people with condemnation before the company even has a permit”
to cross the US Border with Canada. “TransCanada should expect a
rough ride across the prairie with the cart ahead of the horse,”
The U.S. Department of State has not determined if it will issue a permit
for the XL pipeline. TransCanada says it expects a decision before the
end of 2011.