Individual property rights trump Keystone XL in Nebraska


Article Highlights

  • To many conservatives, Keystone opposition reeks of unyielding liberal opposition to development, a stance as NIMBY: Not In My Back Yard.

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  • Keystone If somebody else is trying to build something literally through your back yard, shouldn’t you have the right to say no?

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  • Should pipeline companies have the right to use eminent domain, or be forced to pay market rates for the land they want?

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Should a Canadian corporation be allowed to take land rights from a small Nebraska rancher? Should conservatives side with Big Government and Canadians over private landowners?

A court in Nebraska has put the brakes on the Keystone XL pipeline in a case that started with land rights. The plaintiffs were landowners in Keystone's path who didn't want to sell, and so became victims of eminent domain to benefit Keystone.

The Keystone XL pipeline, being built by TransCanada, has generated dozens of passionate arguments on both sides.

Keystone opponents say the pipeline will disrupt habitats. The pipeline has also become a totem for oil, and thus a symbol of so many things hated on the Left: profits, pollution, climate change, and Republicans.

Keystone defenders also make many arguments: Building pipelines creates jobs. More oil could mean cheaper oil. More oil from Canada and North Dakota means less oil from Venezuela and Iran.

But politics weighs heavy on the pro-Keystone side too. Keystone divides the Left -- pitting greens against labor unions -- and it's a rare winning issue for Republicans because Americans love oil and energy independence.

To many conservatives, Keystone opposition reeks of unyielding liberal opposition to development, a stance conservatives and libertarians deride as NIMBY: Not In My Back Yard.

But here’s the thing: NIMBYism is problematic from a free-enterprise view only if it’s used metaphorically. If somebody else is trying to build something literally through your back yard, shouldn’t you have the right to say no?

And from north to south, that’s exactly what Keystone XL’s owners are doing: working with state governments to use eminent domain and force reluctant landowners to allow the pipeline through their property.

Merrick County, Nebraska, is farmland. Randy Thompson co-owns about 400 acres out there, which he runs as a small ranching and farming operation, according to his telling.

Thompson spoke with TransCanada representatives, who sought easements over his ranch. The company would pay Thompson for the right to run the pipeline through his land, including the space needed to build the pipeline. Thompson would retain most property rights, especially after construction was done, but he would need to cede some land rights to TransCanada.

Thompson said no, arguing that the pipeline could rupture or leak, tainting the valuable aquifer (natural underground reservoir) that lay beneath that part of Nebraska.

So on April 7, 2011, Thompson got a letter from TransCanada Senior Land Coordinator Tim Irons.

“The proposed route of a crude oil pipeline, known as Keystone XL, crosses a portion of your property,” the letter began. “To construct the project, we must acquire permanent and temporary easements, and possibly other pipeline and construction related land rights” from Thompson’s property, Irons wrote.

“It is our strong preference to negotiate a voluntary easement acquisition with each property owner,” but "negotiations are not progressing to a voluntary settlement in a timely manner.”

Irons’ next line was the gut punch: “In such circumstances, property laws in Nebraska and most other jurisdictions allow proponents of projects that are in the broader public interest to use eminent domain to acquire the easement.”

In other words: Accept our price and our terms, or we’ll forcibly take your property rights away.

Eventually, Nebraska approved the taking and approved the pipeline construction. Thompson and two other Nebraska landowners teamed up with environmentalist Keystone opponents and sued.

Nebraska Gov. Dave Heineman approved the pipeline under a law that passed in 2012. That law clarified that pipeline companies had eminent-domain authority, and gave to the governor some powers formerly reserved for the Nebraska Public Service Commission.

Judge Stephanie Stacy, in the Lancaster County District Court, ruled that the Nebraska constitution didn’t allow the governor to have such authority. “[B]ecause the Governor's actions … approving the Keystone XL Pipeline route were predicated on an unconstitutional statute,” Judge Stacy wrote, “the court also finds the Governor's actions in that regard must be declared null and void.”

The questions of Nebraska’s constitution and separation of powers are arcane ones. But the question that spurred the fight ought to heighten conservative questions about Keystone: Should pipeline companies have the right to use eminent domain, or should they be forced to pay market rates for the land they want?

If the pipeline is economically so valuable, shouldn’t its developers be willing to pay what it takes to build it — without the government putting a gun to the head of landowners?

It's not an easy question — which means Keystone isn't an easy issue.

Timothy P. Carney, a senior political columnist for the Washington Examiner, can be contacted [email protected] This column is reprinted with permission from

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