by Walter Brasch
Julia Trigg Crawford of Direct, Texas, is the manager of a 650-acre farm that her grandfather first bought in 1948. The farm produces mostly corn, wheat, and soy. On its north border is the Red River; to the west is the Bois d’Arc Creek.
TransCanada is an Alberta-based corporation that is building the controversial Keystone Pipeline that will carry bitumen—thicker, more corrosive and toxic, than crude oil—through 36-inch diameter pipes from the Alberta tar sands to refineries on the Gulf Coast, mostly to be exported. The $2.3 billion southern segment, about 485 miles from Cushing, Okla., to the Gulf Coast is nearly complete. With the exception of a 300-mile extension between Cushing and Steele City, Neb., the rest of the $7 billion 1,959 mile pipeline is being held up until President Obama either succumbs to corporate and business pressures or blocks the construction because of environmental and health concerns.
When TransCanada first approached Crawford’s father in 2008, and offered to pay about $7,000 for easement rights, he refused, telling the company, “We don’t want you here.” He said the corporation could reroute the line, just as other pipeline companies in oil-rich Texas had done for decades. TransCanada later offered $10,395. The family still refused. In August 2012, with Dick Crawford’s daughter, Julia Trigg Crawford now managing the farm, TransCanada offered $21,626—and a threat. “We were given three days to accept their offer,” she says, “and if we didn’t, they would condemn the land and seize it anyway.” She still refused.
And so, TransCanada, a foreign corporation exercised the right of eminent domain to seize two acres of the farm so it could build a pipeline. Governments may seize private property if that property must be taken for public use—building roads and bridges is a common reason— and the owner is given fair compensation. Although the exercise of eminent domain to seize land for the public good is commonly believed to be restricted to the government, federal law permits natural gas companies to use it. In Texas, to get that “right,” all TransCanada had to do was fill out a one-page form and check a box that the corporation to declare itself to be a “common carrier.” The Railroad Commission, which regulates oil and gas in Texas, merely processes the paper, rather than investigates the claim; it admits it has never denied “common carrier” status. In the contorted logic that is often spun by corporations, TransCanada then declared itself to be a common carrier because the Railroad Commission said it was, even though the Commission’s jurisdiction applies only to intrastate, not interstate, carriers.
Crawford’s refusal to sell is based upon a mixture of reasons. About 30 acres of the land houses Native American artifacts, and is the site of one of the major Craddo Nation burial sites.
Another reason Crawford refused to be bought out was that she didn’t want TransCanada to drill under the Bois d’Arc Creek that irrigates about 400 acres of her land. “Any leak, she says, “would contaminate our equipment, and then our crops in minutes.” It isn’t unreasonable to expect there will be an incident that could pollute the water, air, and soil for several miles. During the past decade, there were 6,367 pipeline incidents, resulting in 154 deaths, 540 injuries, and $4.7 billion in property damage, according to the federal Pipeline and Hazardous Materials Safety Administration.
Crawford challenged TransCanada’s right to seize public property, arguing not only is TransCanada, which had net earnings of $1.3 billion last year, a foreign corporation, but that it doesn’t qualify as a “common carrier” since the benefit is primarily to itself. However, the Texas Court of Appeals may not rule until after the pipeline is laid down and covered. Even if it does rule for Crawford, TransCanada is likely to appeal. “They have far more lawyers and funds than we have,” says Crawford, who held a music festival last month to help raise funds.
Most states’ new laws that “regulate” fracking were written by conservatives who traditionally object to “Big Government” and say they are the defenders of individual property rights. But, these laws allow oil and gas corporations to use the power of eminent domain to seize private property if the corporations can’t get the landowner to agree to an easement, lease, or sale. In Pennsylvania, Act 13 allows corporations involved in the natural gas industry to “appropriate an interest in real property [for] injection, storage and removal” of natural gas.
This week, heavy machinery rolled onto the Crawford farm.
Crossing an easement and into a barbed wire enclosure that separates the land TransCanada seized from the rest of the farm, the bulldozers and graders are peeling away the topsoil of a 1,200 foot strip. Hundreds of wooden ties, now stacked like matchsticks a story high, brought by 18-wheelers crossing the agricultural land that Crawford and her family work, will be placed as tracks for more equipment.
On the farm is an old and creaky windmill, ravaged by time and a few shotgun shells. “But it’s still standing there,” says Crawford who may be a bit like that windmill. She’s a 6-foot tall former star basketball player for Texas A&M who is now standing tall and proud in a fight she says “began as a fight for my family,” but has now become one “for the people, for the landowners who wanted to stand up and fight for their rights but didn’t think they could.”
[Dr. Brasch is an award-winning syndicated columnist whose latest book is Fracking Pennsylvania, an in-depth overview of the effects of fracking upon health, the environment, worker safety, and agriculture.]