10 Comment

• Lurker February 27, 2012 at 9:49 am

  I’m glad to see that the city of Houston has stepped up to do the right thing after those two homes were damaged by a “fecal fountain.” It’s unfortunate, however, that it required this much public attention of the matter before they gave in and started cleaning it up.
• Old School February 27, 2012 at 11:06 am

  The XL pipeline case will be fun to watch. J. Medina (ret) is leading the charge by landowners to prevent eminent domain from being used for the benefit of a private party (XL) as being illegal without any showing of a public purpose. This case will be a big test for the revisions to eminent domain law in TX and also has the fun angle of putting left leaning environmentalists and cultural antrhopologists (they claim there are Caddo Indian artifiacts on site) on the same side as hard righ leaning property rights advocates with Tea party ties like J. Medina.
• TheNiche February 27, 2012 at 1:53 pm

  I doubt that it’ll be difficult to establish that the XL pipeline has a public purpose. Even if poorly written, law must be interpreted in such a way as conforms to the legislative intent. And there’s no way in hell that legislators would threaten the ability of mid-stream energy firms to do business! That’d put a draconian constraint on oil and gas production potentials here in Texas. (Never mind that the same reasoning might be applied to prevent electric transmission lines to desperately-needed new power plants.)

  It can’t happen; not here. Texas is not California.
• Old School February 27, 2012 at 4:49 pm

  The law excepts “common carriers”. Pipeline operators assumed that if they checked the common carrier box on their TRRC application that they would be able to use eminent domain. But the ultra, ultra, ultra conservative Texas Supreme Court held that in order to show that it was a common carrier the pipeline company must actually show that the pipeline will be open to and used by companies other than the owner of the pipeline. Checking the box on the permit was insufficient. Those opposing the pipeline fear that a spill would forever render their watershed contaminated and destroy the value of their land for commercial agriculture. So, the law is not so draconian as it gives pipeline operators an exemption if they can show that they are true common carriers, which conforms to the legislative intent to stop the use of eminent domain by government purely for private purposes. I do not know how XL operators plan to show that their pipeline will be a common carrier considering that it is only carrying the oil from Canada. It will be very interesting to watch this play out. Same dynamic as the Trans Texas Corridor: foreign owned company looking to plow through Texas landowners using eminent domain.
• movocelot February 27, 2012 at 6:54 pm

  Two diametrically-opposed news issues here: Water Rights & Eminent Domain.

  In TX, Right of Capture tells landowners that they own whatever water they can capture – to hell with the neighboring person or town which is either downstream or has a shallower well. The Von Orm case could throw all of Texas history out the window! (Good for landowners.)

  In TX, property rights have always reigned supreme. This is why Title Companies have to be involved in property deals. As an ‘immigrant’ to Texas, I thought this was an unnecessary expense, however, it gives power to the little guy against the big guy . . . (Good for landowners.)

  So if a LANDOWNER can’t feel safe in TEXAS, what the ?
• TheNiche February 27, 2012 at 7:01 pm

  Old School, the Keystone XL pipeline will also draw from domestic reserves produced from Bakken Shale in Montana and delivers to the gigantic hub in Cushing, OK. From there, any quantity or quality of oil can be sent downstream through Texas, and you can be assured that TransCanada isn’t stupid enough to tie up their own pipe if there’s a higher bidder to ship domestic crude than the transport of their own foreign crude is worth.
• Ross February 27, 2012 at 8:20 pm

  The XL pipeline is owned by a pipeline company. I doubt they will have any trouble proving they carry oil for hire, given the owner doesn’t have any production.
• Old School February 28, 2012 at 3:03 am

  Under the recent TX S Ct ruling, the pipeline company cannot get common carrier status simply by claiming that the pipeline will be open to the public for hire. They must show that their customers will either retain ownership of the oil or sell to parties other than the pipeline company. So, the question is not whether others will have access to the pipeline by being willing to pay more than the Canadians. The question is whether TransCanada will structure their business to meet the S Ct standard or whether they will go to the legislature and try to change the law (Perry loves the pipeline). I would suspect that TransCanada is not going to restructure their operations to try to appease a few dozen landowners in Texas. But it is fun watching ultra conservatives eat their own young.
• TheNiche February 28, 2012 at 9:49 am

  The common carrier requirements are VERY low hurdles for any pipeline between Cushing Hub and Houston/Port Arthur. You’re tilting at windmills on this one.

  As for NIMBY parasites, they come in all political flavors; they’re self-interested and check their principles at the door. If you find opposition to NIMBYs amusing then you should try baiting mosquitoes with your own blood and swatting them for sport. You’d probably enjoy that too.
• Old School February 28, 2012 at 11:07 am

  NIMBYism is trying to control someone else’s land use based on the externalities of that use. It isn’t NIMBYism when you are trying to control the use of your own property. The US federal constitutional standard was weakend in 2005 when the US S Ct held that a private actor could show a public purpose if the eminent domain taking resulted in an expansion of economic development. Conservative states, including Texas, enacted more restrictive requirements for eminent domain that effectively eliminated the ability to claim expansion of economic development as grounds for eminent domain.
  If a pipeline company does not trade in the oil placed in its pipeline (different standard for natural gas–they are given the status of a utility), then there is no hurdle. If a pipeline company does business by trading in the oil placed in its pipeline, then the hurdle could be a brick wall. Conservatives have place property rights on a very high pedestal and have done the same for domestic oil production. Watching the two interests collide is fun in that the claims of protecting universal interests (energy or property rights) are really nothing more than claims of self-interest.