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 foreign company?
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 outfit?”
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,” Domina said.
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.