...unless your name is Big Oil.

Rep. Kristi Noem and her House colleagues approved H.R. 1433, the Private Property Rights Protection Act, on a voice vote last week. The bill includes this encouraging language on the sense of Congress that eminent domain is a grave threat to rural America (emphasis mine):

(a) Findings- The Congress finds the following:

  1. The founders realized the fundamental importance of property rights when they codified the Takings Clause of the Fifth Amendment to the Constitution, which requires that private property shall not be taken "˜for public use, without just compensation'.
  2. Rural lands are unique in that they are not traditionally considered high tax revenue-generating properties for State and local governments. In addition, farmland and forest land owners need to have long-term certainty regarding their property rights in order to make the investment decisions to commit land to these uses.
  3. Ownership rights in rural land are fundamental building blocks for our Nation's agriculture industry, which continues to be one of the most important economic sectors of our economy.
  4. In the wake of the Supreme Court's decision in Kelo v. City of New London, abuse of eminent domain is a threat to the property rights of all private property owners, including rural land owners.

One of the key selling points District 8 Senator Russell Olson likes to make in favor of the Keystone XL pipeline is that TransCanada is now generating all this wonderful tax revenue with Keystone 1 in eastern South Dakota that we couldn't get from mere farmers. By supporting HR 1433, Rep. Kristi Noem, next to whom Russ was so pleased to sit when she visited Pierre that he hasn't recovered enough to post any more updates on his Facebook page since Feb. 21, apparently disagrees with the absolute goodness of a pipeline built by a foreign company on eminent domain.

HR 1433 sounds more good notes on why we must protect rural America from profit-driven eminent domain (again, with my emphasis):

(b) Sense of Congress- It is the sense of Congress that the use of eminent domain for the purpose of economic development is a threat to agricultural and other property in rural America and that the Congress should protect the property rights of Americans, including those who reside in rural areas. Property rights are central to liberty in this country and to our economy. The use of eminent domain to take farmland and other rural property for economic development threatens liberty, rural economies, and the economy of the United States. The taking of farmland and rural property will have a direct impact on existing irrigation and reclamation projects. Furthermore, the use of eminent domain to take rural private property for private commercial uses will force increasing numbers of activities from private property onto this Nation's public lands, including its National forests, National parks and wildlife refuges. This increase can overburden the infrastructure of these lands, reducing the enjoyment of such lands for all citizens. Americans should not have to fear the government's taking their homes, farms, or businesses to give to other persons. Governments should not abuse the power of eminent domain to force rural property owners from their land in order to develop rural land into industrial and commercial property. Congress has a duty to protect the property rights of rural Americans in the face of eminent domain abuse.

Now if only Rep. Noem and her colleagues were serious about protecting South Dakota farmland from the predations of Canadian oil profiteers. Section 9.1.A.iv specifically excludes pipelines from the uses of eminent domain prohibited by statute. In other words, Rep. Noem's Big Oil donors are welcome to continue threatening liberty and rural economies for their own profit.

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Rep. Kristi Noem continues to cry that letting TransCanada seize American farmers' land to raise our gas prices is "Right for America."

At least one Texas landowner and one Texas judge disagree. County Judge Bill Harris has blocked construction on a farm where TransCanada seized easement rights through eminent domain for its Keystone XL pipeline. That farm is one of at least 89 instances in Texas where this foreign private company has used eminent domain against American landowners. Is that right for America, Kristi?

TransCanada just reported quarterly revenues rising from $2.06 billion to $2.36 billion at the end of 2011. Their Q4 profit was $375 million. That's $4 million a day. Keep dickering, landowners: TransCanada can afford more than they're offering you.

Our Congresswoman is at least tamping down her job claims about the Keystone XL pipeline. Last month she was Tweeting that Keystone XL would bring 130,000 jobs. She now just says "thousands." Getting warmer... the pipeline may support just 127 permanent jobs.

Oh yeah, and Kristi voted to rush President Obama's decision on the Keystone XL pipeline. She wanted to truncate the regulatory process and require a decision on the State Department permit for the pipeline by the end of this month. TransCanada says they're still working with Nebraska to determine the best alternative route around the ecologically sensitive Sandhills. Effectively, Kristi would have wanted State to make a decision on Keystone XL with less than two weeks to analyze a new alternative route. That's why it's her fault that President Obama had to reject TransCanada's application last month.

Read more! Media Matters summarizes the five big angles of the Keystone XL story to which Kristi Noem and much of the press have not been paying enough attention. (You, dear readers, will not be surprised, since you've read about all of them here):

  1. TransCanada used aggressive tactics with landowners.
  2. TransCanada didn't deliver on previously promised tax revenue.
  3. TransCanada reversed its position on rerouting.
  4. TransCanada will import much of the steel for the pipeline.
  5. TransCanada said its pipeline would increase oil prices in the Midwest.

Read, Kristi. You might learn something.

Update 20:01 MST: Watch Congressman Bobby Rush, liberty-loving Demcorat from Illinois, speak up for American property rights. Listen to Congressman Lee Terry, oil-sodden Republican from Nebraska, try to drown out Rep. Rush's words of truth. Rep. Terry and Keystone XL are both out of order.


The South Dakota House takes up House Bill 1111 this afternoon. HB 1111 doesn't get rid of the use of eminent domain by private corporations. But it establishes a clear procedure that railroad and pipeline companies must follow in seeking rights-of-way. HB 1111 defines "good faith negotiation" to include providing landowners with a written description of the proposed project, including reclamation plans, and an explanation of the company's estimate of fair market value for the land sought. The process must include a bona fide offer from the company, a counter offer from the landowner, and a response from the company. That response must be either acceptance of the landowner's counteroffer or a final offer from the company, not just a letter saying, "See you in court."

HB 1111 allows railroad and pipeline companies to start eminent domain proceedings thirty days after completing good faith negotiation. Companies seeking to take your land by judicial force must have all necessary federal and state permits in hand before starting the condemnation process. In court, a company must prove that it has obtained the permits, carried out good faith negotiations, and gotten agreements from at least 90% of the landowners along the route. The company also must prove the land is necessary for the project.

If a railroader or pipeliner obtains easements under HB 1111, it will have three years to put the project in motion. If the company doesn't start digging, or if it changes the project and the damages done to the landowner, the easement terminates.

I hate to distract from the debate over good bill we have by bringing up a better bill we could have. But we could make an argument that private entities shouldn't be able to use eminent domain at all. SDCL 11-7-22.1 seems to make that argument:

11-7-22.1. Acquisition of private property by eminent domain for certain uses prohibited. No county, municipality, or housing and redevelopment commission, as provided for in this chapter, may acquire private property by use of eminent domain:

  1. For transfer to any private person, nongovernmental entity, or other public-private business entity; or
  2. Primarily for enhancement of tax revenue.

We don't let our own government take our land and hand it to private entities; why should we allow private entities to commit that crime directly? (And really, you Tea Party shouters who decry taxation as theft ought to be all over the eminent domain issue.)

Even if we can't end the tyranny of rich companies over individual landowners, we can embrace HB 1111 as due protection for South Dakotans against the predations of TransCanada, DM&E, and other land-grabbing corporations. House Transportation gave this bill a 10-3 "Do Pass"; tell your legislators to give it a similar thumbs-up on the House floor today and the Senate floor soon!


Republicans and Big Oil thought they were so clever shoehorning a rushed 60-day approval process for the Keystone XL pipeline into the payroll tax cut extension last month. Calgary investment house FirstEnergy Capital disagrees:

In a research note to clients today, the Calgary-based investment house had some depressing commentary regarding the controversial pipeline, which would ship growing production from Alberta's bitumen belt and North Dakota's Bakken to U.S. Gulf Coast refineries. In the note, FirstEnergy analyst Steven Paget wrote that the Republican gambit to force Obama's hand and make the 2012 presidential election a referendum on Keystone XL, "is nothing but negative for TransCanada as it makes the pipeline even more of a political issue, and it also means that the pipeline is still unlikely to receive approval until after the November 2012 election" [Darren Campbell, "FirstEnergy Gets Bearish about Keystone XL's Prospects," Alberta Oil, 2012.01.04].

The State Department has said that doing the new Keystone XL review right will take 15 months. The Obama Administration has signaled that forcing a decision in 60 days requires a rejection of the permit. Analyst Paget says Keystone XL backers should hope the President asserts his proper authority over foreign policy (remember, Keystone XL crosses international borders: since when does Congress tell the President how to make foreign policy?), ignores the 60-day mandate, and lets the review process come to a natural conclusion.

Backers of clean water and property rights should hope the President does his best judo: use the Republicans' chicanery to justify denying the Keystone XL permit. The President will wink at all the cheering greens, then hit the campaign trail to cudgel Mitt Romney and John Thune with the charge that Republicans killed all the jobs and energy independence they imagined Keystone XL would bring.

Bonus Keystone XL Irony: TransCanada, a Canadian company, has spent millions of dollars lobbying federal and state governments in the U.S. to promote Keystone XL. Alberta Premier Alison Redford and Canadian Prime Minister Stephen Harper have lobbied Washington on behalf of Keystone XL. But PM Harper wants to somehow block foreign opponents of the Enbridge Northern Gateway pipeline project from voicing their concerns in Canada's formal regulatory process.

Read more! The Daily Yonder offers an excellent write-up of the different rules on taxes, environmental safety, and eminent domain the Keystone XL pipeline faces across the Plains states. Oklahoma landowner Sue Kelso said her state officials abandoned her in her fight to keep TransCanada from seizing her land through eminent domain (sound familiar, Mike and Sue Sibson?). But sometimes the squeaky wheel manages to avoid the oil: Sue Kelso made enough noise, suing TransCanada to stop their use of eminent domain, to persuade TransCanada to reroute Keystone XL off her property.


Madison is wasting more than six million dollars on an unnecessary gym. But in a bit of cosmic fiscal karma, the State Department has made my week by deciding to delay the construction of the unnecessary and un-American Keystone XL pipeline for more than a year.

The State Department announced today that environmental concerns, especially about the Nebraska Sand Hills, justify conducting the in-depth examination of alternative routes, which is one of the big problems the EPA and others said State should have done in the first place.

Now let's look back at May, when Rep. Kristi Noem voted to force the State Department to make a decision two weeks ago. If the bill she voted for had passed, she'd have forced State to make a decision based on the information available on November 1. The State Department's announcement today makes clear that, forced to make a decision on November 1, concerns about the Sand Hills and the Ogallala Aquifer would have forced the Obama Administration to deny TransCanada's application to build Keystone XL.

In other words, Rep. Kristi Noem, in her willful ignorance, voted to kill Keystone XL. And President Obama, through State, just voted to keep it alive. (Kristi, take credit for that an run!)

Actually, opponents of the pipeline are claiming victory, perhaps the first great victory of the 99%. Bill McKibben says the President has effectively killed the pipeline. The dozens of South Dakotans and hundreds of fellow Americans facing eminent domain at the hands of TransCanada can only hope so.

We can only wish that the Madison Central School Board would have shown the Obama Administration's good sense in giving serious consideration to reasonable alternatives to a bad plan.


I've been reading the Department of State's Final Environmental Impact Statement on TransCanada's proposed Keystone XL pipeline. Numerous commentators are focusing their criticism on the FEIS's environmental analysis. I want to take a look at the section on socioeconomic impacts. That section shows significant property tax gains but unclear if not outright contradictory claims on benefits and costs in other areas. That section also shows a distressing blindness to one of the most noteworthy socioeconomic impacts, the use of eminent domain by a foreign company for private profit.

Keystone XL will cross more miles and pass within two miles of more residents in South Dakota than in Montana or Nebraska, the states along the Steele City section, the great northern hypotenuse connecting Alberta with the existing TransCanada pipeline that heads south across Kansas. Yet South Dakotans have seemed relatively quiet about the pipeline. A few landowners have filed official protest, but I haven't heard much other ruckus from my neighbors about this dangerous, unnecessary land grab.

Perhaps that seeming silence can be explained by this table of potential property tax gains:

According to the State Department's analysis, the nine counties Keystone XL will traverse stand to gain $15.4 million in annual property tax revenue from the pipeline. Harding, Haakon, and Jones counties would see their property tax revenues more than triple. Only one other county along the route, McCone in Montana, would see a greater proportional fiscal impact.

I can't argue with the fact that such dramatic revenue increases could do a lot of good in the sparsely populated West River counties affected. I realize I'd have a hard time walking into the courthouse in Buffalo or Philip or Murdo and telling county commissioners to turn down Keystone XL and try recruiting cleaner projects to come in and raise their revenues.

I would nonetheless try. The FEIS paints a picture of other socioeconomic benefits that remains at best unclear. Consider first of all that the Department of State got lazy and did not update numbers from TransCanada's original application submitted in 2008. DOS uses Census data from 2000, income data from 2007, unemployment data from 2008, and property tax data from 2007. A little more studious reserach by Secretary Clinton's minions would have dug up at least 2010 data for all of these figures. Asking for up-to-date economic data may be a small quibble, but the absence of 2010 economic data from the report calls into question how much effort was made elsewhere in the FEIS to produce a complete and accurate analysis.

The FEIS addresses the jobs Keystone XL offers. The construction of the pipeline may create 5000 to 6000 temporary jobs. However, as we saw with Keystone I across eastern South Dakota, very few of those jobs will go to local people:

Efforts would be made to hire temporary construction staff from the local population through construction contractors and subcontractors. Provided qualified personnel are available, approximately 10 to 15 percent (50 to 100 people) could be hired from the local work force for each spread. This may not be possible in more rural areas [FEIS, 3.10-54].

Using 2008 unemployment data (class, can anyone tell me why using 2008 employment figures in 2011 is bad? Anyone?), the FEIS shows that the temporary local jobs created in the states Keystone XL crosses would amount to less than 1% of the number of people unemployed in those states. That doesn't mean Keystone XL temporarily lowers your local unemployment from 5% to 4%; that means it lowers your local unemployment from 5% to maybe 4.97%.

The long-term impact on jobs is almost nil:

The limited number of permanent employees associated with the proposed Project would result in minor long-term impacts on housing. If all 20 operational employees were newly hired for the proposed Project Final EIS Keystone XL Project and moved into the proposed Project area, they would require a maximum of 20 housing units. The existing vacant housing in the proposed Project area could easily meet this housing need [FEIS 3.10-80-81].

Twenty operational employees. Twenty. Along the entire pipeline route. That means maybe three or four new workers in South Dakota. Keystone XL has little impact on unemployment during construction and zero impact on unemployment long-term.

The Department of State shows its favor for TransCanada by the different language it uses on benefits and costs of Keystone XL. The FEIS speaks of "positive impact on the local economies" [3.10-58], even though new jobs are minimal, and even though State offers no hard analysis of increased local business activity during construction. But when the FEIS turns to cost, State chooses language that clearly minimizes negative impacts:

In any case, given the transient nature of the workforce, the impact of increased demand for medical services on local minority and low-income populations would be minor and short-term [FEIS 3.10-63].

Few non-local workers would likely be accompanied by family members because of the short construction period and transient nature of the work. Therefore, potential overall public service impacts associated with temporary increases in population would be short-term and minor in much of the proposed Project area [FEIS 3.10-89].

The FEIS emphasizes that, since these transient outside workers won't bring families along, they won't unduly burden local medical systems and other public services. The FEIS notes that in South Dakota, many of the workers will be concentrated at camps (also known as company towns) near Union Center and Winner, further easing the impact those transient workers will have on local services. But the FEIS does not similarly emphasize how these factors will also reduce whatever positive economic impact these workers may bring as they send their money back home to their families and keep to themselves more often at camp rather than coming to town all the time for supper.

The FEIS fails to address one of the most singificant socioeconomic impacts of the Keystone XL pipeline: the use of eminent domain by a foreign company to support private profit. TransCanada has told landowners up and down the proposed pipeline route that they have in choice in the matter. If landowners won't sign easements, TransCanada will take them to court to force them to give up their property rights.

I suspect there are more than a few South Dakotans who would be up in arms if they thought the government was going to force them to surrender their property rights to a foreign company, no matter what the proposed use. Those South Dakotans would be even angrier if they knew that the proposed use was not a public highway they could drive on or a public park where their kids could play but totally private infrastructure that will carry North American oil to China and raise their gasoline prices.

TransCanada is raping prairie landowners. That seems a pretty important socioeconomic impact. Yet our Department of State ignores that rape.

And alas, with 300%+ increases in property tax revenues, South Dakota's county officials seem inclined to do the same.


If a Congressman sponsors a bill on a topic, we rightfully expect the Congressman to know more than we do about the topic.

Congressman Lee Terry from Omaha, Nebraska, sponsored H.R. 1938, legislation that would require the Executive Branch to rush through its review of TransCanada's Keystone XL oil pipeline permit. Rep. Betty Sutton of Ohio offered an amendment requiring the President to prevent TransCanada from seizing farmland and ranchland against landowners' consent. Rep. Terry responded with this flabbergasting misinformation:

Number one, private companies do not have any rights of eminent domain; they can't take people's lands. So this part about them exercising eminent domain is just not relevant here. They aren't doing this; they don't have the power [Rep. Lee Terry, floor debate, U.S. House of Representatives, Congressional Record page H5538, 2011.07.26].

Oh my. Anyone who has paid any attention to TransCanada's pipeline projects in the United States knows full well that the Canadian company's use of eminent domain has been a primary source of controversy over the Keystone system. TransCanada has sent letters to landowners informing them of TransCanada's right to use eminent domain. My neighbors Mike and Sue Sibson surrendered to TransCanada's installing its Keystone I pipeline across their land because a South Dakota court ruled landowners could not say no. Fox News has reported on TransCanada's use of eminent domain in Texas. I have reported on and Rep. Terry's colleague Senator Mike Johanns has criticized TransCanada's use of eminent domain in Nebraska. Oklahomans are suing TransCanada to stop it from using eminent domain on their property.

The most generous conclusion: Congressman Terry is oblivious to the facts about TransCanada's use of eminent domain. And if Rep. Terry does not understand this basic and obvious fact about the Keystone pipeline system, what other facts might he be missing as he does Big Oil's bidding and undercuts the regulatory process?

Update 08:17 CDT: Related Keystone XL notes:

  • Rep. Terry also avers from the House floor that "any leaks that would occur are going to be minimal and not hazardous to the Ogallala aquifer or to the Sand Hills."
  • Rep. Terry follows up his eminent-domain know-nothingness (again, see CR H5538) with his head-scratching assertion that the Keystone XL pipeline can't raise gas prices. But energy experts will tell you straight up that "the project would help reduce the glut of oil in storage at Cushing" and "help reduce the $20 per barrel price differential between West Texas Intermediate, oil priced at Cushing, and London Brent Crude." Translation: Keystone XL decreases Midwest supply and increases Midwest gas prices by fifteen cents per gallon.
  • Duke University enviro-prof Bill Chameides reminds us that Keystone XL's shipping capacity won't be needed until after 2020 and maybe not unitl 2030. What's the rush?
Comments Off on Congressman Rushing Keystone XL Review Denies TransCanada Uses Eminent Domain

Pipelines kill or injure people more frequently on American soil (once a week) than Islamoterrorists. They definitely do more damage than a certain sensationalized and acquitted defendant in Florida (whose name I refuse to blog on charges of irrelevance to real public policy issues, Google juice be darned). One would hope Americans would thus offer more resistance to TransCanada as it pushes to build more deadly pipelines.

In Texas, TransCanada is replacing its gentler lawyers with more aggressive solicitors who slap surprise eminent domain lawsuits on landowners who thought they were negotiating in good faith. Note also that these good Texas folks are simply behaving rationally in the marketplace, looking at the risks of pipelines made apparent most recently by the Exxon-Silvertip spill in Montana's Yellowstone River, and deciding they don't want to bring that risk onto their land.

In a good summary of the dangers of TransCanada's Keystone XL tar sands oil pipeline, Carrie La Seur points out that many Americans fail to understand how deeply personally such intrusion on their land impacts farmers and ranchers:

The thing that always strikes me in conversations with farmers about the tar-sands pipelines is their use of this phrase: "They're siting it across me." Not "across my land," but "across me," because out on the harsh, beautiful plains that so many take for granted, people identify with their land like they identify with their own bodies. Most Americans have no experience with this level of connectedness. It's something we've lost, and something many of us are trying to recover [Carrie Le Seur, "Keystone XL Pipeline Would Screw over Farmers, Threaten Aquifer," Grist, 2011.07.17].

TransCanada insists that its proposed Keystone XL route will have the least environmental impact since it takes the shortest route from Alberta to Nebraska. But then why didn't they apply that same rationale to the big inverted L they laid across Saskatchewan and the Dakotas? And why haven't they responded to the prickly question raised by Senator Mike Johanns of Nebraska, who last October notes that the "shortest route" argument means Keystone XL would have even less environmental impact in the U.S. if TransCanada laid it alongside the current Keystone I pipeline?

The Keystone XL pipeline endangers life, liberty, and property. My neighbors in the Winfred Freedom Party get all bent out of shape over much smaller intrusions on their rights. Make some noise, people. Call your Congresspeople, tell them Keystone XL is bad for our country.


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