Pretend that a corporation from China wants to build a factory in Texas just for the fun of it and needs to seize a bunch of Texans' private property to build the factory, because it's going to be really big and awesome. Do you think the Texas Supreme Court would stand for that? Probably not.
And so, environmentalists are attempting to make a similar, pro-property rights argument to stop the southern portion of the Keystone Pipeline in its tracks. Sure, they could try to challenge TransCanada for safety reasons, pointing out that its Gulf Coast pipeline already had to be dug up for potential repairs 125 times.
But defending private property is a popular issue here, and using that tactic in court lately seems to be sort of effective. The Texas Supreme Court has just allowed a landowner's case against TransCanada to go forward, even though the lower courts had previously refused to hear it.
TransCanada isn't too worried. Construction on the 485-mile southern leg of its Keystone Pipeline, called Gulf Coast Pipeline Project, is already complete. The company confidently announced before New Year's that the pipeline would begin service on January 22.
But now, TransCanada is going to have to answer some questions from the Texas Supreme Court. "The Supreme Court of Texas requests that respondent file a response to the petition," says a dry notice the court issued on Tuesday.
Environmentalists describe that notice as a "clear victory."
The Supreme Court could have just tossed the case out without asking TransCanada to turn in any paperwork at all. "It's not a huge victory, but it's the first time the courts, at least in our case, have said, 'No, TransCanada, you can't get everything the way you want it,'" landowner Julia Trigg Crawford tells Unfair Park. OK, that's victory-ish.
TransCanada says no, that everyone is just reading into things. "Despite claims to the contrary, there has been no Texas Supreme Court ruling in Ms. Trigg Crawford's favor. The Court has simply requested a response to her claim as part of the Texas Supreme Court process," TransCanada spokesman Davis Sheremata tells Unfair Park via email.
Crawford lives and works at a 650-acre farm in Lamar County. In 2008, TransCanada offered her the sum of $7,000 for lifetime control of it. She rejected the offer, and subsequent higher ones, so TransCanada then got approval from the Texas Railroad Commission for rights to her land through eminent domain.
Crawford is pissed. Sure, she still lives and works there. But now there's a pipeline running through her pasture, which she didn't want.
In court, Crawford has pointed out that TransCanada is not a local company (look at the name) and notes that the pipeline will mostly be transporting Canadian tar sands.
"A foreign corporation pumping foreign oil simply does not qualify as a common carrier under Texas law," Crawford argues.
While the Texas Railroad commission and lower courts have disagreed, there is some indication that the Texas Supreme Court might side with Crawford.
In 2012, the state's highest court sided with property owners fighting a different project, the Denbury Green Pipeline. The court ruled at the time that the pipeline company needed to prove a project was for the public good before seizing people's land, and criticized the eminent domain procedure that the Texas Railroad Commission had allowed. "Private property is constitutionally protected, and a private enterprise cannot acquire condemnation power merely by checking boxes on a one-page form," the court said at the time.
TransCanada says it will "prepare and file a response shortly" to the supreme court.