Courtroom Showdown Challenges TransCanada's Right to Eminent Domain over Keystone Tar Sands Pipeline

We Texans
Independent Texans
Public Citizen
Texans for Accountable Government
On Aug. 10, statewide groups of all political persuasions went to the Lamar County courthouse to support Texas landowner Julia Trigg Crawford against TransCanada, which has announced plans to start building the southern segment of the Keystone pipeline to carry tar sands crude from Cushing, Oklahoma to Texas Gulf Coast refineries.
The courtroom showdown marked the first landmark battle following a recent Supreme Court case ruling in favor of landowners. Crawford’s hearing is the first case since the Supreme Court ruling to protect private property from an illegal taking. Julia Trigg Crawford, along with her attorney Wendi Hammond, faced Judge Bill Harris and a team of TransCanada lawyers in a packed courtroom of observers with an overflow crowd for more than six hours. Crawford’s attorney contended that TransCanada is a foreign-owned pipeline carrying tar sands for private profit, challenging its qualifications as a common carrier with eminent domain rights.
Texas courts have long held that property owners could not challenge property takings by pipelines, but a recent, unanimous Texas Supreme Court decision, which highlighted the fight between Texas Rice Land Partners versus Denbury Green Pipeline changed that equation. In the Denbury Green court case, the justices unanimously ruled that the pipeline company had to prove it was meeting the state’s statutes and serving a common good before it should be given the right to “take” private property.
“Today the eyes of Texas were shining upon the Judge in this case. All of us were here to see if he would stand up to protect landowners from illegal takings or side with a foreign pipeline company. The Crawford case begged the question of whether Judge Bill Harris would allow a hearing on the facts or whether he would deny a landowner justice in favor of this Canadian company,” said Debra Medina, former gubernatorial candidate and executive director of We Texans, a nonpartisan public policy advocacy group. “It appears we will not get our answer today. The court has been saddled with volumes of paper and will take it, along with the arguments, heard today into consideration before rendering its decision. A decision may be rendered as early as Wednesday.”
“However, it is disappointing that the court granted TransCanada the right to start trenching with a writ of possession,” Medina added.
“Why are Texans made to fend for themselves against the likes of corporations like TransCanada?” Medina asked. “The leaders of this state often talk about protecting property rights—but when the abuse starts, they stand up for the politically influential. This is in keeping with the crony capitalist lethargy that grips Austin. They pretend to see and hear no evil. The fervor by which people from all political stripes came here today to rally for the Crawford’s cause should make it clear: Texans are tired of abuse at the hands of big business and big donors.”
“The Texas Railroad Commission approved TransCanada’s permit to operate a pipeline as a common carrier, yet the agency has stated that it doesn’t review the applications for pipelines and doesn’t have the authority to determine common carrier status or give eminent domain permission to TransCanada,” commented Jessica Ellison, spokeswoman from Independent Texans. “TransCanada has yet to prove to the court that they meet the legal requirements of transporting the product for the public good or for public use.”
With the threat of imminent trenching for TransCanada’s southern pipeline segment to begin, landowners such as David Daniel of Winnsboro have now told TransCanada that it can no longer come on his property. Daniel has recently been served with notice by TransCanada that they are seeking a court order with the threat of damages should he continue to refuse entry onto his property. Daniel’s Winnsboro neighbor, Susan Scott, has also recently refused the entry of surveyors on her land.
"Here we've had a private company masquerading as a 'common carrier' pipeline in order to obtain the power of eminent domain in Texas. The Crawford family, along with those landowners supporting her today and more than 90 other landowners, have had their land condemned by TransCanada. These landowners deserve to be protected from eminent domain abuse before irreparable harm is done to their property," contended Terri Hall, founder and director of Texans Uniting for Reform and Freedom. "It's an outrage that in a state that claims to be pro-property rights, that there's absolutely no state authority checking to see whether or not these private companies meet the legal requirements of a public use pipeline. Landowners should not be put in the position of law enforcers at great personal expense."
Recently, the Texas House Land and Resource Management Committee met at the Capitol to hear invited testimony from Crawford and other interested parties regarding the dilemma of industries self-proclaiming they are common carriers with no review from any state agency as to whether a company is truly a common carrier or not.
“The answers we need may not lie ultimately in this Judge’s decision, the answer may lie an appeals court. The final outcome will also be laid at the foot of the Texas legislature to do something about this kind of abuse," noted Tom ‘Smitty’ Smith, executive director of Public Citizen. “We have already begun the process of pointing out the grave inequities of companies being able to walk into the Railroad Commission saying ‘trust us,' we’re a common carrier, and then be granted eminent domain authority without the needed checks and balances and review by an authorized government agency. That needs to change with the next legislative session.”
“Regardless that there were no decisions made today, it is clear that more steps need to be taken,” remarked Linda Curtis, director of Indy Texans. “Ms. Crawford’s case is emblematic of the continuing struggle of Texas landowners being tread upon by a private company, taking land for private use, and foreign profit. In the revolutionary words of those who’ve come before us, ‘we’ve not yet begun to fight’…and this court case makes it evident that more landowners like Ms. Crawford need to stand up and be heard.”
The trial before Judge Harris marked the continuation of proceedings which began in Paris on Feb. 13. TransCanada’s attorneys have complained that the delay of the start of its southern segment has cost the company $3 to $4 million per day.
The southern segment of TransCanada’s Keystone pipeline encompasses a 485-mile trek from Cushing to refineries on the Gulf coast. In Texas, more than 1,450 parcels of land have been acquired by TransCanada in its pursuit of construction on the pipeline which has been slated to commence any day pending any further legal delays. Ms. Crawford’s 600-acre farm near Sumner, north of Paris, signifies the last tract in contention between Cushing and the refineries on the Gulf Coast.
Visit EcoWatch's KEYSTONE XL page for more related news on this topic.
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Trending
By Eric Tate and Christopher Emrich
Disasters stemming from hazards like floods, wildfires, and disease often garner attention because of their extreme conditions and heavy societal impacts. Although the nature of the damage may vary, major disasters are alike in that socially vulnerable populations often experience the worst repercussions. For example, we saw this following Hurricanes Katrina and Harvey, each of which generated widespread physical damage and outsized impacts to low-income and minority survivors.
Mapping Social Vulnerability
<p>Figure 1a is a typical map of social vulnerability across the United States at the census tract level based on the Social Vulnerability Index (SoVI) algorithm of <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/1540-6237.8402002" target="_blank"><em>Cutter et al.</em></a> [2003]. Spatial representation of the index depicts high social vulnerability regionally in the Southwest, upper Great Plains, eastern Oklahoma, southern Texas, and southern Appalachia, among other places. With such a map, users can focus attention on select places and identify population characteristics associated with elevated vulnerabilities.</p>Fig. 1. (a) Social vulnerability across the United States at the census tract scale is mapped here following the Social Vulnerability Index (SoVI). Red and pink hues indicate high social vulnerability. (b) This bivariate map depicts social vulnerability (blue hues) and annualized per capita hazard losses (pink hues) for U.S. counties from 2010 to 2019.
<p>Many current indexes in the United States and abroad are direct or conceptual offshoots of SoVI, which has been widely replicated [e.g., <a href="https://link.springer.com/article/10.1007/s13753-016-0090-9" target="_blank"><em>de Loyola Hummell et al.</em></a>, 2016]. The U.S. Centers for Disease Control and Prevention (CDC) <a href="https://www.atsdr.cdc.gov/placeandhealth/svi/index.html" target="_blank">has also developed</a> a commonly used social vulnerability index intended to help local officials identify communities that may need support before, during, and after disasters.</p><p>The first modeling and mapping efforts, starting around the mid-2000s, largely focused on describing spatial distributions of social vulnerability at varying geographic scales. Over time, research in this area came to emphasize spatial comparisons between social vulnerability and physical hazards [<a href="https://doi.org/10.1007/s11069-009-9376-1" target="_blank"><em>Wood et al.</em></a>, 2010], modeling population dynamics following disasters [<a href="https://link.springer.com/article/10.1007%2Fs11111-008-0072-y" target="_blank" rel="noopener noreferrer"><em>Myers et al.</em></a>, 2008], and quantifying the robustness of social vulnerability measures [<a href="https://doi.org/10.1007/s11069-012-0152-2" target="_blank" rel="noopener noreferrer"><em>Tate</em></a>, 2012].</p><p>More recent work is beginning to dissolve barriers between social vulnerability and environmental justice scholarship [<a href="https://doi.org/10.2105/AJPH.2018.304846" target="_blank" rel="noopener noreferrer"><em>Chakraborty et al.</em></a>, 2019], which has traditionally focused on root causes of exposure to pollution hazards. Another prominent new research direction involves deeper interrogation of social vulnerability drivers in specific hazard contexts and disaster phases (e.g., before, during, after). Such work has revealed that interactions among drivers are important, but existing case studies are ill suited to guiding development of new indicators [<a href="https://doi.org/10.1016/j.ijdrr.2015.09.013" target="_blank" rel="noopener noreferrer"><em>Rufat et al.</em></a>, 2015].</p><p>Advances in geostatistical analyses have enabled researchers to characterize interactions more accurately among social vulnerability and hazard outcomes. Figure 1b depicts social vulnerability and annualized per capita hazard losses for U.S. counties from 2010 to 2019, facilitating visualization of the spatial coincidence of pre‑event susceptibilities and hazard impacts. Places ranked high in both dimensions may be priority locations for management interventions. Further, such analysis provides invaluable comparisons between places as well as information summarizing state and regional conditions.</p><p>In Figure 2, we take the analysis of interactions a step further, dividing counties into two categories: those experiencing annual per capita losses above or below the national average from 2010 to 2019. The differences among individual race, ethnicity, and poverty variables between the two county groups are small. But expressing race together with poverty (poverty attenuated by race) produces quite different results: Counties with high hazard losses have higher percentages of both impoverished Black populations and impoverished white populations than counties with low hazard losses. These county differences are most pronounced for impoverished Black populations.</p>Fig. 2. Differences in population percentages between counties experiencing annual per capita losses above or below the national average from 2010 to 2019 for individual and compound social vulnerability indicators (race and poverty).
<p>Our current work focuses on social vulnerability to floods using geostatistical modeling and mapping. The research directions are twofold. The first is to develop hazard-specific indicators of social vulnerability to aid in mitigation planning [<a href="https://doi.org/10.1007/s11069-020-04470-2" target="_blank" rel="noopener noreferrer"><em>Tate et al.</em></a>, 2021]. Because natural hazards differ in their innate characteristics (e.g., rate of onset, spatial extent), causal processes (e.g., urbanization, meteorology), and programmatic responses by government, manifestations of social vulnerability vary across hazards.</p><p>The second is to assess the degree to which socially vulnerable populations benefit from the leading disaster recovery programs [<a href="https://doi.org/10.1080/17477891.2019.1675578" target="_blank" rel="noopener noreferrer"><em>Emrich et al.</em></a>, 2020], such as the Federal Emergency Management Agency's (FEMA) <a href="https://www.fema.gov/individual-disaster-assistance" target="_blank" rel="noopener noreferrer">Individual Assistance</a> program and the U.S. Department of Housing and Urban Development's Community Development Block Grant (CDBG) <a href="https://www.hudexchange.info/programs/cdbg-dr/" target="_blank" rel="noopener noreferrer">Disaster Recovery</a> program. Both research directions posit social vulnerability indicators as potential measures of social equity.</p>Social Vulnerability as a Measure of Equity
<p>Given their focus on social marginalization and economic barriers, social vulnerability indicators are attracting growing scientific interest as measures of inequity resulting from disasters. Indeed, social vulnerability and inequity are related concepts. Social vulnerability research explores the differential susceptibilities and capacities of disaster-affected populations, whereas social equity analyses tend to focus on population disparities in the allocation of resources for hazard mitigation and disaster recovery. Interventions with an equity focus emphasize full and equal resource access for all people with unmet disaster needs.</p><p>Yet newer studies of inequity in disaster programs have documented troubling disparities in income, race, and home ownership among those who <a href="https://eos.org/articles/equity-concerns-raised-in-federal-flood-property-buyouts" target="_blank">participate in flood buyout programs</a>, are <a href="https://www.eenews.net/stories/1063477407" target="_blank" rel="noopener noreferrer">eligible for postdisaster loans</a>, receive short-term recovery assistance [<a href="https://doi.org/10.1016/j.ijdrr.2020.102010" target="_blank" rel="noopener noreferrer"><em>Drakes et al.</em></a>, 2021], and have <a href="https://www.texastribune.org/2020/08/25/texas-natural-disasters--mental-health/" target="_blank" rel="noopener noreferrer">access to mental health services</a>. For example, a recent analysis of federal flood buyouts found racial privilege to be infused at multiple program stages and geographic scales, resulting in resources that disproportionately benefit whiter and more urban counties and neighborhoods [<a href="https://doi.org/10.1177/2378023120905439" target="_blank" rel="noopener noreferrer"><em>Elliott et al.</em></a>, 2020].</p><p>Investments in disaster risk reduction are largely prioritized on the basis of hazard modeling, historical impacts, and economic risk. Social equity, meanwhile, has been far less integrated into the considerations of public agencies for hazard and disaster management. But this situation may be beginning to shift. Following the adage of "what gets measured gets managed," social equity metrics are increasingly being inserted into disaster management.</p><p>At the national level, FEMA has <a href="https://www.fema.gov/news-release/20200220/fema-releases-affordability-framework-national-flood-insurance-program" target="_blank">developed options</a> to increase the affordability of flood insurance [Federal Emergency Management Agency, 2018]. At the subnational scale, Puerto Rico has integrated social vulnerability into its CDBG Mitigation Action Plan, expanding its considerations of risk beyond only economic factors. At the local level, Harris County, Texas, has begun using social vulnerability indicators alongside traditional measures of flood risk to introduce equity into the prioritization of flood mitigation projects [<a href="https://www.hcfcd.org/Portals/62/Resilience/Bond-Program/Prioritization-Framework/final_prioritization-framework-report_20190827.pdf?ver=2019-09-19-092535-743" target="_blank" rel="noopener noreferrer"><em>Harris County Flood Control District</em></a>, 2019].</p><p>Unfortunately, many existing measures of disaster equity fall short. They may be unidimensional, using single indicators such as income in places where underlying vulnerability processes suggest that a multidimensional measure like racialized poverty (Figure 2) would be more valid. And criteria presumed to be objective and neutral for determining resource allocation, such as economic loss and cost-benefit ratios, prioritize asset value over social equity. For example, following the <a href="http://www.cedar-rapids.org/discover_cedar_rapids/flood_of_2008/2008_flood_facts.php" target="_blank" rel="noopener noreferrer">2008 flooding</a> in Cedar Rapids, Iowa, cost-benefit criteria supported new flood protections for the city's central business district on the east side of the Cedar River but not for vulnerable populations and workforce housing on the west side.</p><p>Furthermore, many equity measures are aspatial or ahistorical, even though the roots of marginalization may lie in systemic and spatially explicit processes that originated long ago like redlining and urban renewal. More research is thus needed to understand which measures are most suitable for which social equity analyses.</p>Challenges for Disaster Equity Analysis
<p>Across studies that quantify, map, and analyze social vulnerability to natural hazards, modelers have faced recurrent measurement challenges, many of which also apply in measuring disaster equity (Table 1). The first is clearly establishing the purpose of an equity analysis by defining characteristics such as the end user and intended use, the type of hazard, and the disaster stage (i.e., mitigation, response, or recovery). Analyses using generalized indicators like the CDC Social Vulnerability Index may be appropriate for identifying broad areas of concern, whereas more detailed analyses are ideal for high-stakes decisions about budget allocations and project prioritization.</p>Wisconsin will end its controversial wolf hunt early after hunters and trappers killed almost 70 percent of the state's quota in the hunt's first 48 hours.
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