Landowners and environmental protestors joined together at the Jefferson County Courthouse on Wednesday, Sept. 12, as attorneys for TransCanada sought a writ of possession on three parcels of land here so construction of the Keystone XL pipeline could begin. A hearing was held before Judge Tom Rugg in County Court at Law No. 1 to decide the narrow issue of the writs.
Houston attorney Thomas Zabel has represented TransCanada in many of these cases where land was taken by eminent domain. He noted that under Texas law, property owners could not challenge taking of land for pipelines.
But a recent Texas Supreme Court decision in the case of Texas Rice Land Partners vs. Denbury Green Pipeline said otherwise. The high court unanimously ruled that the pipeline company had to prove it served a common good before it should be given the right to seize private property. The test of whether the project is indeed a common carrier is legally murky. 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.
At the beginning of the hearing, Judge Rugg said, “We have a trio of TransCanada pipeline cases today, and I’m not sure why we’re here,” then he noted, “Common carrier status seemed to be the issue of the day.”
The urgency for the proceeding rests with the writ of possession TransCanada asked the court to issue, which would allow pipeline construction to begin even as landowners continue their legal appeals. Zabel noted TransCanada has posted surety bonds to compensate landowners should they prevail.
Terry Wood, attorney for Texas Rice Land Partners, when asked if those bonds were sufficient to make his clients whole again should a court rule against TransCanada, was quick to respond. “Absolutely not,” he said and questioned procedures that favored “TransCanada’s desire to build their pipeline over the constitutional rights of my client.”
Leeanne Johnson of Orgain, Bell & Tucker represented the other two landowners in court, both linked to prominent Beaumont families — Phelan and Dishman. She strongly disputed TransCanada’s arguments, at one point telling the court that Zabel was being “disingenuous at best.”
Zabel said TransCanada needs those writs so if TransCanada meets resistance when workers show up on the property “the sheriff can say they have a right to be there.”
Based on Johnson’s statement to the court, he might have something to worry about. One of the landowners she represents was identified as the M.A. Phelan Trust. If construction crews show up at the Phelan farm, said Johnson, “Mike Phelan said they are going to stop them.”
Judge Rugg bemoaned the lack of clarity from the higher courts. “I’m left with no guidance from Denbury,” he said, but promised to rule by Sept. 24.