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Land seizures create path for pipeline

Is your domain eminently defensible? Or can a private corporation take your home and land for profit? How about a foreign corporation?

These questions arise because currently a foreign corporation, TransCanada of Calgary, Canada, is trying to use the legal procedure known as eminent domain to seize private land in Nebraska along the planned route of its Keystone oil pipeline. (TransCanada already has seized more than 100 properties in Texas for the pipeline.)

TransCanada wants to build the pipeline to transport crude oil from the northern U.S. border to the Gulf states where it will be refined and shipped to foreign markets. Standing in its way is a group of about 90 Nebraska landowners calling themselves “Bold Nebraska.” They have sued the company, claiming its attempted seizures are unconstitutional.

As of this writing, a Nebraska district court judge agreeing with the plaintiffs has issued a temporary injunction against the seizures. TransCanada is expected to appeal the ruling to the Nebraska Supreme Court.

But how did things get to this point? Why is a foreign company allowed to seize American land so it can build anything – a pipeline, port or amusement park?

The U.S. Constitution gives the federal government – the “eminent domain” under which we all live – the right to take land for use deemed beneficial to the public as a whole, provided the landowner is justly compensated for the loss.

As a practical matter, that right also is delegated to states, counties, municipalities and even corporations so they may appropriate land for building publicly owned facilities such as highways, harbors and dams. Most people have agreed that such eminent domain takings are a legitimate use of government power.

However, a controversial 5 to 4 U.S. Supreme Court decision in the 2005 case of Kelo vs. the City of New London (Connecticut) redefined the “public use” intent of the Constitution’s authors. In Kelo, the court determined that the private development of a poor (but not blighted) area of the city of New London justified eminent domain takings of lower middle-class homes, including that of the plaintiff Susette Kelo.

The court’s ruling set a precedent for transferring property from one private entity to another – in that case, Kelo’s home to a private development corporation – when justified by the city’s desire to garner higher tax revenues from development.

In an interesting twist, the giant international drug corporation Pfizer had promised New London that in exchange for deep tax breaks, it would build a job-creating headquarters on the land, if the development corporation could procure it. Pfizer came through, spending $294 million on a complex where 1,400 people worked. Eight years later, as its tax breaks were expiring, Pfizer moved to another city, leaving an empty 750,000-square-foot building surrounded by vacant lots where homes once stood.

International trade agreements such as NAFTA (North American Free Trade Agreement) have been interpreted to supplement the Kelo precedent by giving foreign corporations such as TransCanada the right to initiate eminent domain proceeding on American soil.

But questions remain.

Property-rights advocates excoriated the Kelo decision. In response, 27 states passed laws forbidding seizures for private profit and/or raising tax revenues; however, those laws remain uncontested in court. Ironically, some of those same voices now champion the Keystone pipeline and have gone silent concerning the Nebraska eminent domain seizures.

Conversely, environmentalists, who generally believe eminent domain should be used to protect the environment, are supporting Bold Nebraska’s struggle.

Perhaps Americans of all stripes should recognize a common enemy and seek common ground in the wisdom of the Constitution’s “public-use” clause – before eminent domain notices appear at their ecological houses.

Philip S. Wenz, who grew up in Durango and Boulder, now lives in Corvallis, Oregon, where he teaches and writes about environmental issues. Reach him via email through his website, www.your-ecological-house.com.



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