Tag Archives: Opinion

Texas Supreme Court Pipeline Ruling Sets back Texas Land Owner Rights

03 Friday Feb 2017

Posted by in common-carrier status, Denbury, Environmental Permitting, Landowner Rights, Pipelines, Politics, Property Rights, Supreme Court, texas condemnation, texas condemnation lawyer, texas eminent domain, Texas Eminent Domain Attorney, Uncategorized

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According to the Fifth Amendment of the U.S. Constitution and Article I, Section 17 of the Texas Constitution, applications of the eminent-domain power must be for public use. Jurisdictions have developed legal and administrative structures which allow private interests limited uses of the power. For Texas pipelines, the granting of eminent-domain authority can only take place when a project fulfills certain requirements. Chief among these is the ability to prove that the pipeline has a public use, meaning it is not being built exclusively for and used only by the entity condemning the land. Statewide, the common-carrier definition, and the derivative test determining whether the definition can describe a given pipeline, is used to establish and enforce the public use requirement.

In the recently decided Denbury Green Pipeline – Texas, LLC v. Texas Rice Land Partners, Ltd., the Texas Supreme Court clarified the access conditions for common-carrier status. In 2015, an appellate court established two additional barriers to common-carrier status. First, it held that a pipeline’s common carrier status must result from an examination of the intent of the constructing party to use the pipeline for public benefit at the onset of the project’s contemplation. Second, the pipeline’s use must serve a “substantial” public interest. The Supreme Court decision reversed these two holdings, the first on the grounds that it misinterpreted case law, and the second because it proceeded beyond the limits of precedent. The Supreme Court also held that Denbury’s post-construction product transportation contracts with third parties, and the fact that certain third parties would retain product title, was sufficient to evidence public use and therefore common-carrier status after the pipeline is built. This opinion is a significant blow to Texas landowner rights.

Inside Out: A New Way of Looking at the 2012 Presidential Debate

04 Thursday Oct 2012

Posted by in Politics

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“All of the increase in natural gas and oil has happened on private land, not on government land. On government land [Obama’s] administration has cut the number of permits and licenses in half. If I’m president, I’ll double them and bring the oil offshore from Alaska and I’d bring that pipeline in from Canada … I want to make America, North America, energy independent so we can create jobs.” Among the many contentious points of discussion during last night’s presidential debate was TransCanada’s Keystone XL pipeline. Obviously, a number of questions and criticisms arise in response to last night’s debate on these issues.

However, in speaking for or against these issues of progress versus sustainability, one particular player in the game was left unnoticed: the landowners. Not once in the debate did either Governor Romney or President Obama mention the property rights of land and business owners who face the real consequences of these projects. Furthermore, only a select few social media outlets even mention this controversial subject. Instead, we speak of tax reforms and the structure of the economy. We speak of health care and education. Don’t get me wrong; all of these issues are important, but how does anyone successfully solve a problem by looking at it only from the outside in? Our political leaders need to address the issues that concern our nation by pressing past the barriers of the outside perspective. Looking inside out, we find how cuts or increases in taxes can affect asset value, interest rates, and incentives to invest. We see how the trickle-down effect of the economy never reaches the average middle class landowner. Changes in health care policies may affect how landowners respond to oil spills, like the 12 suffered by Keystone XL just last year.

There is no right way to make policies, but there is a way to ensure the basic rights of property owners. The answer is a middle ground. We must abandon partisan bias and focus on the real issues at hand with an eye that sees from the inside out rather than the outside in. In the end, it is the landowners’ rights that must be protected.