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By Marvin Baker, a new weekly column in The Kenmare News


A dangerous precedent

Posted 5/26/15 (Tue)

A lot of people are wondering why the Keystone XL Pipeline isn’t being built. The idea has been dragging on now for nearly 10 years with little construction progress.

Essentially, there are two reasons for the hold up. First, because the pipeline would cross the international boundary from Canada into the United States, it needs executive approval.

In other words, the president needs to sign a document that allows it to happen.

This is what the Senate has been arguing about and since President Obama vetoed the pipeline crossing the border, Sen. John Hoeven said he will attach it to another bill to ensure it passes.

But there is a bigger issue here, one that Hoeven has never mentioned publicly in his crusade to get this pipeline built.

Eminent domain is the issue and a grassroots group in Nebraska has gone to court and received an injunction to not allow the pipeline to cut through the Cornhusker state.

Those Nebraska farmers have two issues regarding this controversial pipeline. First, they are concerned that the Ogallala aquifer could become contaminated should the pipeline spring a leak.

To put it into perspective, that aquifer provides drinking water, irrigation and water for livestock for more than a third of the state. They have a legitimate gripe!

The bigger issue is eminent domain. I looked up the definition of eminent domain and this is how it reads: “the right of a government or its agent to expropriate private property for public use, with payment of compensation.”

OK! The government, or its agent, seizes the property for public use.

In this case there would be a dangerous precedent set because the government’s agent is the Trans Canada Corp. and the property is not being taken for public use.

It’s Canadian oil, that would be shipped through the United States to Houston, then loaded on barges and sent to China.

How does that define public use?

Perhaps the best case study of eminent domain occurred in 1936 with the Tennessee Valley Authority.

Private property was taken through eminent domain, much to the chagrin of the locals but the end result was electricity for just about all of Tennessee.

In this case, it’s a foreign entity shipping a product to a foreign entity.

Yes, Canada is our neighbor, a good neighbor might I add. It is our biggest trading partner. Huge amounts of goods and services cross the border all the time.

This is different because Canada is indeed a foreign nation and the end product isn’t for the benefit of the American public.

Any lawyer will tell you this scenario disregards the law.

Let’s assume a U.S. court allows a Canadian company to seize property for private, profitable use?

Two years from now, a company in the Netherlands wants to raise and butcher hogs in western North Dakota and they decide the gooseneck of Ward County is where they want their feedlot and processing plant.

Does a U.S. court allow it as it did with Trans Canada?

Assume it happens, then what? Who’s next, England, Chile, Saudi Arabia, where does it stop?

Al Jazeera ran a news segment a couple of weeks ago in which an Oklahoma company Williams, is using eminent domain to build a natural gas pipeline across the state of New York.

Legally, Williams could be “the government’s agent,” but is that natural gas going to market “for public use?”

If you say yes, then it would be the same as a road, electricity or a park, in other words, non-profit.

New York landowners are furious because they are losing their property as if dominoes are falling.

None of us like eminent domain, but there are times when it is necessary as in the case of the Tennessee Valley Authority.

There are also times when it’s voluntary, when landowners agree to the eminent domain. If that happens, the law states they are to be compensated fairly.

But Keystone XL is another issue, one that a not-yet-formed legal think tank had better start looking at closely because if that precedent is set, American landowners will be nothing more than modern-day serfs.

Keystone is now irrelevant because of the Energy East pipeline across Canada. But don’t you think those landowners in Nebraska are right in fighting this?