Commission favors pipelines over property rights

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Railroad Commission favoring pipelines over Texas landowners

Updated 08:39 p.m., Friday, July 13, 2012

"Only one candidate for Railroad Commissioner has the proven experience and ability to lead the agency and protect private property rights."

That is the opening line from one of Railroad Commissioner Barry Smitherman's re-election radio ads. The problem, at least from my perspective as an engaged citizen who has fought to protect private property rights in Texas for years, is that Smitherman has not lifted a finger to protect property from eminent domain.

Like his predecessors, Smitherman has presided over a Railroad Commission that has issued T-4 permits, rubber-stamping pipeline claims to common carrier status for any and all pipeline companies who check that box on the form. Those companies then turn around and use their T-4 permit as proof that they have been given the right of eminent domain by the Railroad Commission.

So exactly what has Smitherman or the Railroad Commission done to protect private property? Under Texas law, a pipeline is a common carrier only if it meets a number of strict criteria, but these T-4 permits are granted without any fact checking to determine whether or not the pipeline in question meets those criteria.

It shouldn't be surprising, then, that in 2011 the Texas Supreme Court ruled in Texas Rice Land Partners v. Denbury Green Pipeline that these T-4 permits were not adequate to give a pipeline undisputed rights or common carrier status. Referring to the Railroad Commission's T-4 permits the court's opinion stated:

"Private property cannot be imperiled with such nonchalance, via an irrefutable presumption created by checking a certain box on a one-page government form. Our Constitution demands far more."

Another of Smitherman's ads may give some insight into what he really means when he says he is protecting private property rights.

"Smitherman is working to ensure that when pipelines are built property owners are fairly and transparently compensated."

Now it makes sense - Smitherman isn't working to protect your right to keep your property, he just wants to make sure that when a privately held pipeline company wants to cross without your permission, you will be fairly compensated.

Beyond failing to grasp how that destroys the very idea of ownership, the approach Smitherman presents in his ad misses a crucial point about how eminent domain works in the real world.

If a pipeline company or any other private interest tells you they want your property and are going to get it either through a contract with you or by taking it through eminent domain, what would you do? On the one hand, you may not want to give up your property, but on the other, they've probably got a lot more money and a lot more attorneys than you do. If your land is being taken one way or another, do you want to take the best deal you think you can get, or do you want to go to court and take whatever the government thinks you're owed? Either way, you lose dominion over your property.

Only a small minority of landowners have the tenacity and resources to stand up to these pipeline companies, so most folks just sign on the dotted line. This is why pipeline companies and government officials like Barry Smitherman (among others) can tell the public that eminent domain is being used only sparingly. The truth is that eminent domain was used in every single negotiated settlement because having it as a weapon in its arsenal gives the pipeline company a "sign or else" advantage in negotiations.

Bill Peacock at the Texas Public Policy Foundation put it this way:

"There's no such thing as a voluntary agreement with a company or government that has the power to take your property."

One Texas landowner who has shown the tenacity to fight for her property is Julia Trigg Crawford of Lamar County. Crawford doesn't have the resources for the fight, but she's being supported by grass-roots contributions through Her supporters are helping her stand up to TransCanada, the Canadian pipeline outfit that plans to build the Keystone XL pipeline from Alberta to the Texas Gulf Coast, taking land through eminent domain from at least 89 Texas property owners along the way.

Smitherman is joined by many Texas Republicans in endorsing the Keystone XL pipeline, but perhaps he should reconsider. Smitherman should live up to his rhetoric and protect private property. If TransCanada wants to negotiate for easements with landowners without having an eminent domain sledge hammer in its back pocket, that's fine.

Perhaps Chairman Smitherman should sit down with affected landowners like Julia Trigg Crawford to talk about how lax Railroad Commission rules giving unrestricted eminent domain authority to private companies is affecting Texans. Surely, they'll listen to his side if he'll listen to theirs.

Medina is executive director of We Texans, a nonpartisan, nonprofit organization that fights to protect liberty, integrity and justice through legislation and education.

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