Taking a Stand Against the TransCanada Pipeline
Julia Trigg Crawford returned to manage her family’s 650-acre Texas farm two years ago believing it would be a nice change of pace from her high-pressure corporate career as an executive recruiter in Houston. Crawford had no way of knowing she would soon find herself embroiled in a pitched property rights battle. That struggle with TransCanada Corp., the multi-national firm now building a section of its Keystone XL Pipeline through Texas—also wanted to bury pipe across a 30-acre pasture owned by the Crawford family.
“I stepped in at just the right time,” says Crawford, who, in addition to managing the farm, remains a part-time executive recruiter. She is among the third generation of Crawfords to work the family’s Red’Arc Farm, which sits outside Direct, Texas, 100 miles or so northeast of Dallas. The Lamar County farm produces wheat, corn and soybeans, and supports a small herd of cattle.
While the family traces descendants in the county back to the 1850s, Crawford’s grandfather acquired Red’Arc Farm in 1948. Julia Crawford took on its management from her 79-year-old father, Richard Paul Crawford II, a retired veterinarian who taught at Texas A&M. Crawford also graduated from A&M, where she was a basketball standout, playing forward for the Lady Aggies.
TransCanada first contacted Richard Crawford in 2008 about a pipeline easement for its Gulf Coast Project, a pipeline that would run 485 miles from Cushing, Okla., down to Nederland, Texas.
Pipeline Stops. Today, that 36-inch crude oil pipeline, ready to move upwards of 700,000 barrels of oil per day when it opens, perhaps by the end of this year, runs through 17 Texas counties and across the property of 850 landowners. But it stops abruptly on either side of the Crawford farm and a Coastal bermudagrass pasture.
“[It’s] one of the most beautiful pastures in the county,” Crawford says. “We bale and feed it to our cows, but it is revered as good enough for horse hay.”
TransCanada wants to bury a section of its Gulf Coast pipeline under an easement 50 feet wide and 1,500 feet long through the pasture. The firm condemned the land and offered payment, somewhere between $7,000 and $21,000 by various reports. TransCanada will only say that talks about compensation are private.
Crawford went to court to contest the condemnation. “At no point before your land is condemned do you have the right to come before a judge. Instead, you have to appeal the condemnation,” she says.
Crawford’s principal legal argument turns on the law of eminent domain, specifically if TransCanada, as a private entity, holds the power to condemn land under eminent domain. She has also raised concerns about damage pipeline construction may cause to a Native American archaeological site within the pasture, and the potential long-term risk from the pipeline to water used for irrigation. The pipeline would be horizontally drilled under the Bois d’Arc Creek, which borders the Crawford farm near its confluence with the Red River.
Power play. Eminent domain is a powerful tool of government used to seize, or “take,” private property without the owner’s consent for projects like public facilities, highways and railroads. The U.S. Constitution addresses this essential power of government in the Fifth Amendment. It says private property cannot be taken for public use “without just compensation.” In more modern times, the U.S. Supreme Court has blurred the line between public and private takings. (See “A Principled Defense.”) In no case, however, has the right to compensation been questioned.
TransCanada has offered compensation. But Crawford challenges the right of a private company to condemn private land for what she contends is a private construction project. Crawford admits she would not bristle so much if her land was condemned for a public school or highway, but she rejects the idea “that the rights of a foreign, for-profit company supersede those of a private landowner.”
Texas legal thought does not appear to be entirely on her side. Last fall, Judge Bill Harris, of Lamar County, upheld TransCanada’s condemnation of the land. The ruling cleared the way for TransCanada to lay its pipeline through the Crawford pasture at any moment. This winter passed, however, with no pipeline construction at Red’Arc Farm. A spokesperson for TransCanada told The Progressive Farmer in February that work on the Crawford property had not been scheduled.
Condemn Land. The right of a pipeline company to condemn private land is a straightforward process in Texas when that company has “common-carrier” status. Obtaining it is not a difficult process and is overseen by the Texas Railroad Commission. Common-carrier status gives a pipeline company the right and power of eminent domain to condemn land, rights-of-way, easements and property of any person or corporation necessary for the construction, maintenance or operation of the common-carrier pipeline.
“TransCanada has its [permit] from the Texas Railroad Commission,” a TransCanada representative writes in answer to written questions. “The judge in the Lamar County case involving TransCanada and Ms. Crawford determined in his order that TransCanada is a common carrier, as [have] district and appellate court judges in unrelated matters in Jefferson County, Texas.”
TransCanada has filed about 100 eminent domain cases. Fifty-three cases have gone to court.
The Texas Railroad Commission itself makes it clear on its own web site that it has no authority to grant that status, let alone regulate the eminent domain powers given a pipeline company:
“ ... the Railroad Commission does not determine or confer common-carrier status for pipelines. The pipeline operator reports to the Railroad Commission the status of a pipeline as a gas utility, common carrier or private line. Commission does not have any authority over a common-carrier pipeline’s exercise of its statutory right of eminent domain. Generally, the Railroad Commission has no authority over the routing or siting of intrastate or interstate pipelines. The pipeline route is determined by the pipeline’s owner/operator ... ”
“We’ve shed light on the fact that the Texas Railroad Commission is only a rubber stamp,” Crawford charges. As a common carrier, TransCanada’s pipeline should be open to any oil shipper willing to pay its published rates. There is no indication that TransCanada intends to do either, she says.
TransCanada disagrees. “As a common carrier, the Gulf Coast Project is by definition an open access pipeline. We have not published a tariff yet because we do not have firm service to offer,” the representative writes.
Right to challenge. Crawford’s lawyers find support for their case in a 2011 Texas Supreme Court ruling, Texas Rice Land Partners, Ltd., versus Denbury Green Pipeline-Texas LLC. That case examined whether a rice grower, Texas Rice Land Partners, could challenge the eminent domain power of a CO2 pipeline owner that had been granted a common-carrier permit. The Texas Supreme Court issued a unanimous yes—landowners have the right to challenge common-carrier status in the courts.
“Merely registering as a common carrier does not conclusively convey the extraordinary power of eminent domain or bar landowners from contesting in court whether a planned pipeline meets statutory common-carrier requirements,” wrote Justice Don R. Willett. “Nothing in Texas law leaves landowners so vulnerable to unconstitutional private takings.”
Crawford sees hope in that ruling. The common-carrier permit does not conclusively establish eminent domain power, she says. Her lawyers intend early this spring to appeal Judge Harris’ ruling with the Texas Court of Appeals, in Texarkana.
Meanwhile, the Crawfords have spent $50,000 to date on legal costs. Most of that money has come through a legal defense fund the family has established. “My dad said you cannot lose the farm to save the farm,” Crawford says. “I’m able to stay in the game because of the outside support we are getting.”
Crawford isn’t terribly hopeful she’ll ultimately stop TransCanada’s work on her land. “The pipeline is in and ready to go on both sides of me,” she says, noting that the company fully expects to prevail.
But her goal now isn’t necessarily to win against TransCanada but to create awareness.
“We’re asking the questions of the pipeline that the state failed to ask,” she says. “Winning may ultimately be initiating a change in state laws that creates a better balance between corporate and landowner rights.”
Legal contests over eminent domain are rarely brief and nearly always expensive. To some degree, how effectively you wage a legal battle against the exercise of eminent domain depends on where you live. But some principles apply across the board.
Anthony Della Pella, an eminent domain attorney with McKirdy and Riskin, P.A., in Morristown, N.J., says two conditions must be satisfied for eminent domain to be exercised:
It has to satisfy a public purpose.
The condemning agency has to provide just compensation to the landowner.
Della Pella points out that while most typically think of eminent domain as being exercised for the construction of schools, roads, airports, courthouses, and jails, it has become far more complex in the last decade with the line between public versus private purposes growing ever more blurry.
The well-known 2005 U.S. Supreme Court ruling in Kelo versus City of New London expanded the power of eminent domain when it ruled 5 to 4 a local government could force property owners to sell their land for private development even if there is no guarantee of public benefit.
State Action. Since that ruling, however, 44 out of 50 states adopted laws to create greater restrictions on the exercise of eminent domain. Farmers remain particularly at risk because they own large tracts of land.
Right now, the TransCanada Keystone pipeline is on everyone’s radar, and Della Pella says property owners typically have little ability to defend themselves against a “taking.”
“The law gives a lot of deference to the government to determine needs for public purpose,” he explains. “It’s very difficult to defeat a taking unless the property owner can show the government is acting arbitrarily or taking too much land.”
That doesn’t mean, however, you can’t get a fair shake when it comes to minimizing impacts of condemnation. The key for most landowners in eminent domain cases is getting a fair price for the property.
Land Value. “If only a part of your property is taken, then the valuation process can be difficult,” Della Pella says. “Will taking a portion cause damage to the remainder?”
If so, you have to value the impact of any damage. That means taking into account not just the value of the land in its present state but also its possible future value (if it were to be sold and subdivided, for example) and its value to your agricultural operations.
You might want to accept an offer for compensation, but you have no obligation to accept it. “A lot of people don’t know they have a choice,” Della Pella says. “They feel it’s an official government action.”
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