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Tag Archives: TransCanada

With the Keystone decision looming, will the President propose a quid pro quo?

03 Monday Jun 2013

Posted by texascondemnation in Pipelines, Politics

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Environmentalists, Keystone XL, New York Times, Pipelines, politics, President Obama, TransCanada

To many, the ultimate approval of the Keystone XL pipeline project is inevitable. Environmentalists and oil and gas advocates have long been engaged in a heated debate that has narrowed its focus to TransCanada’s Keystone XL pipeline.

Here are a few of President Obama’s options: a) approve the pipeline and offer an energy-efficient tax incentive or alternative energy goal proposal for the future; b) approve the pipeline and disregard the cries of environmentalists; c) strike the pipeline and disregard upset oil and gas investors that are likely to pursue the pipeline’s construction anyways; d) strike the pipeline and offer some kind of proposal to alleviate what to advocates of traditional energy forms would seem like an utter crisis; e) indefinitely postpone the decision entirely. The problem with creating an additional proposal to his decision to strike or approve the pipeline is that it would require approval from Congress, which we all know has been facing much difficulty seeing eye to eye. Regardless of the path President Obama chooses, someone is bound to be upset; such is the nature of dramatic once-in-a-term decisions like this. Because of the opportunity’s rarity, the decision to keep or remove the contentious pipeline will leave a lasting impact on how the Obama legacy will be perceived. What is left undeciphered now is through which lens the President’s term will be remembered – will he be envisioned as the environmental advocate or the oil and gas subjugate?

To read about additional possible outcomes of this contentious debate, please click here.

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EPA releases harsh review of Keystone XL environmental report

23 Tuesday Apr 2013

Posted by texascondemnation in Pipelines, Property Rights

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Condemnation, Eminent Domain, EPA, Keystone pipeline, Pipelines, property rights, TransCanada

The Keystone pipeline debate continues. In a letter to State Department officials, the EPA made objections regarding greenhouse gas emissions, pipeline safety and alternative routes. The EPA said it had “Environmental Objections” to the State Department’s environmental assessment due to “insufficient information. ”

Read the EPA’s letter here.

To read more about this article, click here.

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Arkansas Pipeline Rupture Amplifies Keystone Opponents’ Arguments

08 Monday Apr 2013

Posted by texascondemnation in Pipelines

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Arkansas, ExxonMobil, Housing, Keystone XL, Pegasus, Pipelines, property rights, property value, TransCanada, USA Today

In a small town outside of Little Rock, Arkansas, ExxonMobil’s Pegasus pipeline ruptured over 19,000 barrels of a mixture of Canadian crude oil and water. More than twenty residents of the town were forced to evacuate from their homes, and according to USA Today, they may be forced to refrain from reentering their homes for another month. See below for what an oil spill might look like in your backyard. Property owners who recently put their home up for sale rightly worry about a decline in market value due to the spill. About a mile from the location of the spill is Lake Conway, just three miles north of the Arkansas River. While ExxonMobil claims the oil did not flow into these bodies of water, some residents saw the oil spilling into storm drains on the street.

No doubt, the flames of those opposing the contentious Keystone XL Pipeline have been fanned, creating worry and discomfort about the installation of a pipeline intended to transfer 800,000 barrels of Canadian crude oil across the nation. Adding to the growing list of unexpected oil spills in Kalamazoo and Yellowstone makes the TransCanada’s claims in favor of the security of the Keystone XL Pipeline seems doubtful.

Will the current administration rule in favor of landowners or forsake the risks of property damage for industrial capital? The Globe and Mail says the President is expected to make a decision this summer. For now, we can only wait.

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Texas Man Attempts to Take a Personal Stand Against Keystone XL Pipeline

28 Friday Dec 2012

Posted by texascondemnation in Pipelines, Property Rights

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Amy Jaffe, Attorneys, David Daniel, Denbury, Keystone XL Pipeline, Landowners, Law, NPR, property rights, texas eminent domain, TransCanada, UC Davis, Winnesboro

Energy experts like Amy Jaffe from UC Davis see oil and its consumption as a lifestyle that we have adopted. In order to maintain this lifestyle, energy infrastructure is vital for the public good. Landowners facing an eminent domain battle with TransCanada and its Keystone XL pipeline don’t exactly agree, especially when the infrastructure costs them their homes. David Daniel owns a 20-acre plot outside of Winnesboro, Texas whose defense has taken extraordinary heights. Eight stories high, in the trees that surround the condemned land, is Daniel’s platform for a last stand. As a carpenter, Daniel did what he knew best. His “airborne fortress” is a series of seven treehouses connected by cables and ropes spanning 500 feet. TransCanada’s daily aerial surveys caught Daniel in action and sued him, eventually forcing a settlement in favor of the company.

Although Daniel’s action was in some ways like Custard’s Last Stand, Texas property owners are not without some remedy to stop pipelines made solely for private use. The Texas Supreme Court has allowed landowners a “Denbury” challenge, which, if successful, could potentially shut down an entire pipeline. Or, at the very least, allow landowners like Daniel to test the pipeline’s right to be on their property. Texas eminent domain law is unique and it is very important for landowners to consult with attorneys who focus in this area.

To read more about Daniel’s fight, please click here..

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Business Keystone XL foes say fed study should consider climate effects

24 Monday Dec 2012

Posted by texascondemnation in Pipelines, Property Rights

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Condemnation, Eminent Domain, Keystone XL, oil, Pipelines, property rights, tar sands, Texas, TransCanada

The Keystone line continues to be a political lighting rod after the presidential election. While the Federal emission challenges demonstrate yet another reason for the line’s harmful effects, the real issue will be whether Keystone – aka Seaway in Texas – will stop offering below market values to property owners. The product they are flowing through the line will most certainly cause future buyers to have concerns with the property impacted by the line.

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How the 2012 Presidential Election Can Affect You, the Landowner

09 Friday Nov 2012

Posted by texascondemnation in Politics, Property Rights

≈ 1 Comment

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2012 Elections, Condemnation, Congress, Eminent Domain, Environmentalists, Keyston XL, oil and gas, pipeline, President Obama, property rights, Texas Condemnation, texas eminent domain, TransCanada

With America’s new president decided, both sides of the energy argument speculate victories. Some oil and gas enthusiasts think President Obama is likely to pass TransCanada’s Keystone XL Pipeline in his second term now that the company has assured that the pipeline will not pass through a sensitive aquifer in Nebraska. At the same time, environmentalists are looking forward to the President’s motions towards clean energy, absent the use of fossil fuels. Whether President Obama will favor one side over the other is left to be revealed when Congress convenes in early January, but in the meantime, we do know the President plans on employing an “all of the above” strategy to solve the energy issue. This means no energy source is likely to be abandoned completely. This also means landowners will need to be far more wary when it comes to their property rights. Whether it is a wind farm or a pipeline, or anything in between, you have the right to just compensation for your land if a private company or the government decides to condemn it. Eminent domain laws were not set in place to favor one side over the other. Know your rights and how to fight back.

To read more about how the 2012 election will affect eminent domain, visit here.

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A Split Decision – Two Sides of the Same Pipeline

05 Monday Nov 2012

Posted by texascondemnation in Pipelines, Property Rights

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East Texas, Environmental Protection Agency, EPA, Gabe Cordova, Keystone XL, Marshall Treadwell, pipeline leak, Pipelines, property rights, texas eminent domain, TransCanada

When it comes to the construction of TransCanada’s Keystone XL Pipeline in East Texas, landowners have a split opinion. While people like Gabe Cordova recognize the dangers in the type of oil proposed to be transferred through the pipeline in his backyard, there are others like Marshall Treadwell who are not bothered by the presence of another pipeline on their land through an existing energy carrier. So is it resignation that allows for this acceptance? As a landowner, you have the right to fight back and attain just compensation in the Texas eminent domain process. TransCanada may offer a few thousand for your land, but is that enough to compensate for the continuous and daily fear of the potential hazards a pipeline transporting oil from tar sands? A 2010 crude oil pipeline leak in Michigan cost over $800 million to clean up, according to the Environmental Protection Agency. In addition, more than 300 people faced health problems because of this same leak. TransCanada may claim its new pipeline is less likely to leak, but even the printer in your office stops working just when you least expect it. There will always be two sides to an issue; it’s whether you’ve asked all of the right questions that will determine on which side you stand.

To read more about Cordova and Treadwell, visit here..

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Not in my Backyard – How About Yours?

26 Friday Oct 2012

Posted by texascondemnation in Pipelines, Property Rights

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Condemnation, Eminent Domain, energy, Keystone XL Pipeline, property rights, Smitherman, Texas Condemnation, texas eminent domain, Texas Railroad Commission, TransCanada

The chairman of the Texas Railroad Commission, Barry Smitherman, spoke about the benefits of the Keystone pipeline at the energy conference hosted by the Greater Houston Partnership last weekend. In his speech, he mentioned the immense amount of profit possible from investment in the line. But who is making all the profit? Definitely not the landowner whose land is condemned so that a private company can install a hazardous pipeline for the transport of oil from tar sands in Canada. Whenever the issue of eminent domain has come up in relation to the Keystone XL pipeline or to energy expansion in general, the landowner’s rights have been swept under the rug.  The best way to fight for your rights is to know them (jmehcondemnation.com). Once we know our rights, protests against condemnation will evolve into civil litigation in favor of the landowner. But to get to this point, we must understand our rights as landowners in the face of eminent domain proceedings.

To read more, click here..

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

04 Thursday Oct 2012

Posted by texascondemnation in Politics

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2012, alternative energy, Blog, Condemnation, debate, elections, Eminent Domain, GOP, health care policies, Johns Marrs Ellis & Hodge, Keystone pipeline, Keystone XL, News, Obama, oil and gas, Opinion, Pipelines, politics, presidential debate, property rights, Romney, Texas Condemnation, TransCanada, trickle down effect

“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.

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The Importance of Property Rights and a Partial History of How We Got Them

24 Monday Sep 2012

Posted by texascondemnation in JMEH Law News, Property Rights

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2012, common law, Condemnation, contract rights, Eminent Domain, Gulf Coast Project, Johns Marrs Ellis & Hodge, just compensation, Kelo, Keystone pipeline, Latin America, Magna Carta, oil and gas, Pipelines, property rights, Sir Edward Coke, Texas, TransCanada

Eminent domain has gotten a lot of press recently. A major catalyst was the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, which allowed a city to take private property from individual landowners so that it could be redeveloped for the pharmaceutical giant Pfizer and thereby increase tax revenues. The Court announced that taking land to allow private companies to redevelop it counted as a “public use” under the Constitution’s Takings Clause.

Public outcry was loud and sustained. Many states, including Texas, passed anti-Kelo legislation to prevent the use of eminent domain for “economic development.” Ironically, the land where Susette Kelo’s little pink house once stood was never redeveloped. Pfizer decided not to go forward with its $350-million research center, nixing the city’s plans for retail shops, condos, and hotels surrounding the facility.

More recently, TransCanada received approval for its Gulf Coast Project, a 485-mile pipeline running from Oklahoma to the Texas coast. TransCanada’s ultimate goal is to build a nearly 2700-mile, $2.3-billion pipeline connecting Canada’s tar sands to Texas’s refineries. The project poses serious environmental concerns, including damage to aquifers and deteriorating air quality from refining tar sands, which critics claim are dirtier than other crudes to refine. Landowners in Texas and elsewhere are up in arms about having a foreign company run toxic tar over their property. The pipeline’s supporters respond that the project promotes U.S. energy security, reasoning it’s better to consume crude oil from North American producers than higher-priced oil from countries that do not share American values.

In takings cases, the public and the media usually fixate on environmental issues and on whether the government or private taker has a “right to take” the land. No doubt, those issues are very important.

But another issue is critical: “just compensation” for the landowner whose property is taken. Today most people ignore this issue. Most of us probably assume that what counts as “just compensation” isn’t controversial, leaving it to our elected Texas Supreme Court to define “just compensation” and “market value” in ways that would surprise most Texans.

Rather than criticize how the supreme court applies the Takings Clause, today I’d like to share a couple of stories about the importance of property rights—and the luck and bravery it took to develop the process for landowners to get any compensation at all.

A Personal Story—and the Importance of Property Rights

Property rights are a big deal in my home. My wife is originally from Latin America. She has wonderful memories of her early childhood: picking mangos right off the tree as an after-school snack, talking with friends as everyone chewed on sugar cane, going to festivals in her small village, and playing with her nine brothers and sisters. (As for having 10 kids, her mom explains, with a wink, that no one in the town had TV during the 60s and 70s.) My wife’s family wasn’t among the super rich, but they had a productive farm and ranch lands that her father had worked his whole life to earn.

But in the 1980s, a civil war ravaged the country, and communist guerrillas confiscated the lands of her family, dramatically changing the trajectory of their lives. My wife and several members of her family members emigrated to the United States, becoming permanent residents and eventually American citizens. They were never able to return to their lands. Even after the war ended, government officials were too corrupt or too weak to help my father-in-law recover his property. Sadly judges and other officials in her native country, as in many places, continue to help shysters cheat people out of their land and inheritance in exchange for bribes and other favors. Her country remains poor, and gangs routinely kidnap people and steal their property, often with police cooperation.

These experiences help explain my wife’s immense love for the United States. She constantly reminds our boys and me of how lucky we are to live in a country with so many educational and cultural opportunities—and a wonderful tradition of respecting property rights and the rule of law. She encouraged me to attend law school and to study property rights in other countries.

My wife’s story shows the importance of property rights in the real world. When governments are too weak or corrupt to protect their citizens’ property, or when the state itself can take private property without paying for it, what incentives do people have to take care of their lands or work to create wealth? People need real guarantees that they will be able to enjoy the fruits of their labor with their family and friends. Otherwise, it’s the law of the jungle, where the strong prey on the weak. As Hobbes put it, such a life is “solitary, poor, nasty, brutish, and short.” And as William Bernstein notes in The Birth of Plenty, the right to property is the right that guarantees all others: “Individuals without property rights are susceptible to starvation, and it is much easier to bend the fearful and hungry to the will of the state.” If the state can arbitrarily threaten a person’s property, “that power will inevitably be used to intimidate those with divergent political and religious views.”

The Rule of Law: An Accident and a Hero

The Big Bang in property rights—including a landowner’s right to “just compensation” for takings—was something of an accident. Following a failed campaign to regain Normandy, King John of England stole property and raised rents on his subjects—but did so without following the proper proceedings, or what we now call “due process.” The barons rebelled, occupied London, and forced John in 1215 to sign the Magna Carta. For the first time, everyone was subject to the law, even the king—who could no longer deprive any free person of life, liberty, or property without due process. And when His Majesty took private property, he would have to pay for it.

Yet strong property rights did not flower overnight. It took brave judges willing to stand up to royalty. Sir Edward Coke was a pioneer in promoting an independent judiciary. In 1606, James I faced accusations that he’d broken promises to transfer property to a bishop. The king asked the judges to delay the verdict until he could personally discuss the case with them, which seems outrageous today but was common practice at the time. Coke refused and convinced his fellow judges to deny the king’s request. The king was not amused, so he summoned the judges to his chambers and demanded they reverse their ruling. While Coke’s fellow judges cowered, Coke calmly told the king that he was bound to honor his duty as a judge, and he refused to cave in to the king’s request. Coke was later removed from office and suffered the indignity of seeing many of his opinions erased from the law books, but his immense popularity as a defender of the common man saved his life. As Bernstein explains, “Now, for the first time in European history, a judge had faced down royal power.” Coke’s Institutes of the Laws of England, which articulated what is known as “the common law,” was especially influential in the American colonies.

The common-law tradition—which views the protection of property rights as the duty of an independent judiciary—was the foundation for the great wealth and freedoms enjoyed in many countries around the world. The common law focused on following legal precedents and maintaining its separation from the other branches of government. These features were critical to developing meaningful property rights. Property owners could point to the rights and guarantees applied in previous cases—and, just as important, the separation of powers meant that a person seeking to take away another’s property rights would have to convince not only the king or a powerful legislator but also the judiciary. In contrast, it was much easier to take away property rights in civil-law countries, where the decisions of a single branch (the legislature) were supreme. It is no surprise, then, that England and America were the first countries to create great wealth—the kind of material wealth never before seen in the history of the world. When government must pay “just” and “adequate” compensation for the property it takes, and when courts enforce property and contract rights, people are more willing to take care of the property they already own and to make investments to increase their holdings.

– by Christopher Johns, partner at Johns Marrs Ellis & Hodge, LLP (cjohns@jmehlaw.com)

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Luke Ellis and Justin Hodge are partners with Marrs Ellis & Hodge LLP. Justin heads the firm's eminent domain practice in the Houston office. Luke heads the firm's eminent domain practice in the Austin office. Luke Ellis is widely recognized as one of Texas’s top young lawyers—and one of the top lawyers of any age practicing in the area of eminent domain. Mr. Ellis has broad experience and has enjoyed success in many types of civil litigation. Justin Hodge is a trial lawyer who represents Texas landowners in condemnation, eminent-domain, and real-estate lawsuits. He represents landowners in condemnation proceedings, not the governmental authorities or private companies taking property. Mr. Hodge has handled complex condemnation and eminent-domain cases throughout the State of Texas. If you have questions about any of the issues raised in this blog, we invite you to discuss them with us at jhodge@mehlaw.com or lellis@mehlaw.com.

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