Landowners, agriculture group keeping up the fight against eminent domain and the Keystone XL pipeline. Is the State Department listening?
By Kate Schwab, 6-23-11
As the third phase of work on the international Keystone XL pipeline looms, the foreign corporation behind the tar sands project is posturing as a handful of landowners in eastern Montana gear themselves up for a fight over land rights.
The $13 billion project comes courtesy of TransCanada, a Canadian firm. It runs approximately 1,711 miles from Alberta to the Gulf of Mexico. Most of the proposed route—1,384 miles of it— is in the United States. The first two phases of the pipeline have already been completed and are fully operational, the company’s website reports. It is supposed to be completed by 2013 and has been in the works for more than three years.
The company says it has already held dozens of meetings for public involvement and points to a Department of Energy study that concluded the pipeline could reduce American dependency on foreign oil from nations outside North America by up to 40 percent. The American Petroleum Institute, which supports the pipeline, also suggested recently that the U.S. could lose the tar sands crude to more cooperative overseas markets if the process continues to be stalled. But the proposed route cuts through a small triangle of northeastern Montana, and locals are not happy about it.
“I’m especially concerned about the safety and emergency preparedness along the route should there be a spill,” landowner Rick Kniepkamp, a resident of Lindsay, Mont., said. Kniepkamp is a member of the Northern Plains Pipeline Landowners Group, an association of affected property owners who have banded together to negotiate environmental and financial issues with TransCanada. Neither he nor any of the other stakeholders contacted by New West responded to requests for further comment.
Kniepkamp has legitimate reason for concern. The finished portion of the pipeline has already experienced several questionable incidents, including leaks in North Dakota and Kansas in May. And in comments released earlier this month, the Environmental Protection Agency said it is far from satisfied with the U.S. State Department’s current draft analysis of the project’s potential impact. In particular, the EPA objects to the report’s claim that the precise nature of the chemicals used to help bitumen flow through the pipeline should remain “proprietary information.”
The EPA also says that the pipeline could pose a hazard to the Ogallala aquifer, and concluded that the State Department had not pushed hard enough for thorough examination of alternate routes. Also called the High Plains aquifer, it lies below eight states, including Wyoming, Colorado and New Mexico.
Montana landowners are none-too-thrilled with a recent change in state law that directly pertains to the pipeline. Governments, schools and some corporations serving public needs have long possessed the power of eminent domain – essentially, the right to purchase and use any piece of private property, regardless of an owner’s approval. Traditionally, eminent domain was reserved as a last resort for public works purposes, such as getting a road, power line or school built. House Bill 198, which passed in Montana’s 2011 legislative session, redefined eminent domain as the privilege of any company holding a Major Facilities Siting Act (MFSA) certificate. The bill has been heavily criticized as drastically expanding the power of private corporations to take land for nonpublic purposes, despite counter-claims from defenders that it merely reaffirms existing legal precedent.
Count Ed Gulick as one who disputes that defense. The chair of the Northern Plains Resource Council, a nonprofit agricultural advocacy group, Gulick attacked the change in a recent column distributed to Montana newspapers. He said the law was changed because proponents lost a court battle.
Another Canadian company tried to claim eminent domain for a private power line in Montana. Landowners fought back in court; the company lost when a judge found the company did not possess the eminent domain right. Previously, Gulick wrote, state law required companies “to prove that the project is for a public use, is necessary and is compatible with the greatest public good and least private injury. This test helped prevent eminent domain from being abused.” In contrast, he said, holding an MFSA certificat doesn’t offer adequate protection. “MFSA wasn’t written to protect the rights of landowners facing condemnation by a private corporation,” he wrote.
His organization, however, has been busy, hosting meetings with affected landholders. According to a statement from Northern Plains Research Council, the group has been working with Bozeman attorney Hertha Lund, who specializes in agricultural and land rights issues. She could not be reached for comment. A spokesman for the Northern Plains Resource Council also declined comment, saying staff were not permitted to speak to the media. A message left for a second staff member was not returned.
In February, a U.S. Department of Energy study concluded that the Keystone XL pipeline was not presently needed. In March, the State Department announced its intent to subject the project to new study. Notice was published in the Federal Register in April, with a new 45-day public comment window.
That window is now closed. The State Department is expected to release a completed environmental impact statement and make a final decision on the fate of the pipeline by the end of the year.
Kate Schwab is an intern for New West.
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Editors note: EF!ers and allies in the struggle against the tar sands are invited to this years Summer Rendezvous which will take place in the Lolo National Forest along Hyw. 12 and will focus on building opposition to Exxon’s proposed tar sands corridor. From July 5th through the 12th we will gather in the Northern Rockies (Idaho, Montana) to unite minds, spirits and forces in order to prevent the Rockies from becoming a devastated landscape… For more information you should contact firstname.lastname@example.org and/or visit northernrockiesrisingtide.wordpress.com