Mike Hathorn never had a problem with pipelines. The 65-year old runs a forestry business outside Lufkin, in East Texas. He and his two partners grow trees to be made into lumber. For decades they’ve made extra money from gas wells and pipelines on their land. Hathorn has 1,200 acres spiderwebbed with more underground pipelines than he can count—the land already has ten natural gas wells on it, and they’re all connected.
Then in June 2011 TransCanada land men showed up to talk about the Keystone XL, TransCanada’s proposed pipeline to move bitumen from the Alberta tar sands to refineries on the Texas Gulf Coast.
“They said the pipeline was fragile, so we couldn’t cross the line with anything bigger than a four-wheeler,” he said. “They wanted total access to the land, so they could build roads wherever they wanted. And if anything happened while they were constructing the pipeline, we would be held liable. Any spills, any fires, anything like that.”
Out of bounds
None of this was normal for an oil and gas company, Hathorn said. He and his partners refused the offer. The next they heard about it, in September 2011, TransCanada had a court condemn the land through eminent domain.
Hathorn was furious. “Supposedly Texas law says a private company can only condemn your property for public use—but I don’t see how this is public use. It’s strictly going to be for the companies developing the Alberta tar sands. It’s not going to be for the public. It’s not going to benefit nobody but the private company, and whoever’s on their payroll.”
Hathorn: “I know what sandblasting does to metal…”
He counter-sued. TransCanada softened its demands. Hathorn signed. “It was going to be a million in legal fees to take it to the Supreme Court,” Hathorn said. “All the money we got from TransCanada went to our legal fees fighting them. We couldn’t fight them any more.”
In the last year, on both ends of the proposed pipeline, TransCanada’s heavy handedness has provoked a populist rebellion against its proposed pipeline, which has been approved in part by the Obama Administration. In both East Texas and Alberta, conservative, traditionally pro-oil sources are speaking out in opposition of the pipeline.
These new opponents stress that they are “pro-oil,” “pro energy independence.” They resist being labeled environmentalists. But they’re turned off by TransCanada. In both countries, they accuse their government of having sold out ordinary citizens for a deal that will hurt the country for the benefit of private corporations and foreign interests.
Hathorn: “I’m not a strong environmentalist, if I am one…”
A leader of the movement is Debra Medina. Medina, a nurse from East Texas, ran against Governor Rick Perry in the 2010 Republican primary, garnering strong Tea Party support. In the last eight months she’s become one of Texas’ most vocal critics of TransCanada.
“People have tried to paint me as against the pipeline, but I’m not,” she said. “It’s not about being for or against the pipeline. It’s about: everybody has to follow the law. Just because we need domestic energy, doesn’t mean that oil companies get to do whatever they want.”
When Medina first heard about the Keystone proposal, she said, she didn’t see any problems with it.
“I said, it’s a private enterprise,” she said. “I believe in energy security. Why would I care about what Keystone does?”
But in late 2011 Medina started getting calls from people like Hathorn, saying that TransCanada wanted absurd restrictions from them. That if they didn’t agree to sign, TransCanada would take their land.
Medina: “You have to follow the law just like everybody else…”
According to Texas law, pipeline companies that are “common carriers”—which allow other companies’ oil and gas through at published rates—can condemn land through eminent domain. But it it isn’t clear that Keystone qualifies as a common carrier. It also isn’t clear whether Texas employs anyone to decide if it does. A 2009 state Supreme Court Case found that the Texas Railroad Commission, which oversees pipelines, didn’t actually investigate whether pipelines met the criteria.
Right now, the process works like this: A lawyer from a pipeline company—say, TransCanada—goes before a district judge and asserts right of eminent domain. The judge almost always says, “okay.” The landowner isn’t invited to that hearing. He or she finds out the results afterward. Keeping the pipeline off means going to court to appeal. Getting a final hearing on the condemnation can take months—months during which the pipeline company can, technically, start building on the land.
Fairness and respect, TransCanada style
TransCanada has said repeatedly that it uses eminent domain claims only as a last resort. A spokesman, Terry Cunha, said the company has “99 percent” of the land rights it needs. As for the rest, “Our commitment is to treat landowners with honesty, fairness and respect, to work with them and come up with the best possible solution.”
Medina says that isn’t true. She points to Mike Hathorn. “Their issue wasn’t money,” she says. “It wasn’t environmental. They said to TransCanada, ‘We’re not objecting to what you’re carrying, we’re objecting to you infringing on our property rights. We’re objecting to being bullied. If you want these restrictions, you need to cross someone else’s land.
“And Keystone said, ‘no, we’ll just come in and take it.’”
Medina: “Private business should not have the ability to take your property…”
In many ways, Medina is the perfect figure to lead a conservative rebellion against the pipeline. She has undisputed Tea Party chops. And she came to prominence on a previous eminent domain issue—Rick Perry’s proposed TransTexas Corridor, a statewide network of toll roads that Medina helped to defeat, a basis of her gubernatorial campaign.
Medina says she’s found 89 cases where TransCanada took land through eminent domain actions. She wants to know why Texas is kowtowing to the company.
Medina: “That’s a terrible miscarriage of justice…”
She’s spent the last six months forging alliances with other Texan groups, trying to get the government to hold hearings. Many of these—like Texans for Accountable Government—have Tea Party leanings, old allies from her TransTexas corridor fight. But she’s also been working groups like the Sierra Club and Public Citizen.
“We’re strange bedfellows for sure,” said Chris Wilson, a chemical engineer who works with Public Citizen. “But Debra Medina has a lot of support in East Texas. She goes to speaking events and rallies, and she packs them in. She can package this issue for people. She can get in places where we can’t.”
Spurred largely by Medina’s coalition, the Texas legislature is arranging hearings on eminent domain abuse by pipeline companies in June or July.
Part two of this piece will look at how TransCanada has drawn the ire of Canadians.