Keystone Pipeline: Commerce Clause and Kelo Catch-All Post
The New York Times reported yesterday that the Keystone Pipeline has become central to the GOP agenda.
The pipeline, proposed by Canadian company TransCanada, will carry oil from the shale fields in Alberta, Canada to refineries in the US Gulf Coast. Recently nixed by the US State Department (due to inadequate time for proper evaluation based on a deadline set by Congress), the pipeline has been the subject of a myriad of political maneuvering by special interests, the Obama administration, the GOP, the Democratic Party, foreign corporations, domestic corporations, labor unions, and state governments (and this is an incomplete list).
In addition to GOP presidential candidates adopting the Keystone issue, a bill has been introduced in the US Senate to approve the pipeline. It is worth noting that this bill may be the first time in decades that the Commerce Clause of the US Constitution has been applied as intended — exercising the authority of Congress to regulate commerce with foreign nations. Perhaps someone should make a plaque to commemorate the event.
Coyote Blog has done a fantastic job addressing the environmental and energy policy issues surrounding the Keystone pipeline. In the comments on these posts, some commentators raised the issue of eminent domain being used to secure easements for the pipeline across private property.
The New York Times outlines the eminent domain issues here. In summary, TransCanada, the Canadian corporate owner of the pipeline, is suing property owners who refuse to allow the pipeline to cross their private land.
You read that correctly. A foreign corporation is asking the courts to exercise eminent domain to grant it ownership or easement of private property.
I am not an attorney (although I sometimes claim to be one for fun), but isn’t eminent domain usually exercised by local executive and legislative branches to seize private property for the public good? Can the courts even exercise eminent domain?
As we learned from the Kelo decision, apparently local governments can transfer property from one private owner to another when the transfer is construed as serving the public good. Does this apply to foreign corporations?
While the GOP may make Keystone a cornerstone of its current agenda, the issues surrounding the pipeline are not going to disappear regardless of any fast track they can implement. Property owners in multiple states are going to fight the eminent domain aspects of this, and they’re going to be well-funded by special interests who have no actual concern for property rights.
I predict this one is going to land in the Supreme Court.
(Suggestion to TransCanada: offer more money for the easements.)