Wendy Davis Aims to Restrict Seizure of Private Land for Pipelines -- But Not the Keystone

You'd think in this state, property rights would be the inviolable bedrock around which damn near everything else revolves. You'd think eminent domain, the taking of private property for public use, would be invoked only when the common benefit of a railroad, a highway or a pipeline is so undeniable that the taking proceeds only with grudging solemnity.

So, it's weird that pipeline companies, overseen by the Railroad Commission of Texas, need only check a box to duly affirm with the state their statuses as "common carriers" -- essentially pipelines that transport for the public good or for public hire. The one-page application, called a T-4, is the beginning and the end of the process for common carrier certification. They're taken at their word. Statute doesn't require that the commission determine whether it's actually true. No hearings are required. No notice need be given to landowners who are about to find themselves in condemnation proceedings. In fact, according to Fort Worth Senator Wendy Davis' office, the commission acknowledged that it has never denied a T-4 permit.

Davis' has proposed a bill that would create a little more paperwork. It would require pipeline applicants to notify affected landowners; disclose a list of customers and whether they're affiliated; and list the names and volumes of the substances it will transport. If a landowner chooses to put up a fight, there would be a mechanism for that through the State Office of Administrative Hearings.

It's an idea whose time has long since come. The Texas Supreme Court last fall ruled in favor of a rice farmer who argued that the company seeking to condemn his land intended to build a pipeline for its own use and that of its affiliates.

"[P]rivate property cannot be imperiled with such nonchalance, via an irrefutable presumption created by checking a certain box on a one-page government form. Our Constitution demands far more," the justices wrote.

We checked, and Davis' office says the bill is not intended to address the most contested pipeline in America. "This is not a Keystone bill," Rick Svatora, Davis' spokesman, tells Unfair Park. Nor is the legislation intended to be retroactive. And even if it was, the southern leg of the Keystone XL through Texas -- already under construction -- would still probably qualify as a common carrier under the current definition.

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Brantley Hargrove

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