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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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A Decade of Fighting is Drawing to a Close

Following nearly a decade of legal struggles, denials from one president and endorsements from another, the saga of the Keystone XL Pipeline looks like it’s coming to close.

In the Rolling Stone feature on the current state of the Keystone XL pipeline, first proposed two presidents ago, Helen Tanderup, discussed what the TransCanada land agent told her and her husband, Art, about the pipeline.

“[T]he best thing since sliced bread,” said Helen, recounting how the project was presented to them.

According to the Tanderups, the agent offered them good money, and promised to restore the disturbed ground so close to its original state they wouldn’t even know the line was there if they didn’t see the construction.

"Boy, by the time she got done you just wanted to jump up and salute the American flag," said Art.

During this entire pitch, the agent clearly stated that the pipeline would be transporting crude oil – but when Art did some research into the project, he discovered that it wasn’t oil at all, but diluted bitumen.

In order to extract the bitumen, a semi-solid tar, oil companies first need to bulldoze forests in order to access the oil-like product before melting it out of the ground with superheated steam. The oil companies then need to dilute the bitumen with byproducts of fracked natural gas so it can be transported through a pipe to a refinery where it can be cracked into crude oil with extreme heat and pressure.

No matter what product is transported along the pipeline, the biggest danger remains the possible contamination of the Ogallala Aquifer, an underground reservoir that provides about 30 percent of the irrigation water used in the United States and drinking water for millions more.

"If that [pipeline] leaks," Art said, "it goes down into the water table, and we aren't gonna know about it until something dies."

When the Tanderups declined TransCanada’s offer, they were told that it didn’t matter – the pipeline was getting built through their property. Citing the Fifth Amendment’s eminent domain clause, states have the power to seize private property for public use as long as they pay a fair amount for it. Most states use this to build a public utility like a hospital, road, school, etc. that clearly benefits the local population. Pipelines, while they don’t provide the same public benefits as these other types of project, are often granted these rights by states.

"It's not like the government's saying, 'We're gonna improve this highway so we need another 20 foot of land,' " Art said. "That's what eminent domain is supposed to be for."

Not only will the farmers whose land could be seized not see a direct benefit from the construction of the pipeline, TransCanada would control the easement beyond the construction stage of the project. They would have the ability to enter the land at any point and make any adjustments they deemed necessary, even if it meant destroying crops. On top of that, if the landowner damaged the pipeline in any way, they would be on the hook for any repair and cleanup costs, as well as any revenue lost because of the damage.

Over the past few years, state legislatures and courts have started pushing back against energy companies looking to use eminent domain to pave the way for their pipelines. Attorney Brian Jorde who represents the Nebraska landowners in their fight against TransCanada, said that he expects this fight to make its way all the way up to the top of the United States legal system.

“[The issue of fossil-fuel companies using eminent domain] will be before the Supreme Court again in some form," said Jorde.

No matter what the Nebraska Public Service Commission decides, the landowners are committed to fighting for their rights until the bitter end.

"Money's nice, but it's not important," Art said. "If one of your grandchildren drinks a drop of benzene, that's important. If our grandchildren decide not to have children because they're worried about the planet they'll grow up on, that's important."

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