Texas Eminent Domain - A Violation of Constitutional Due Process

Barry and Alicia Zavah

By Rev. Barry Abraham Zavah

In less informed times, laws were enacted giving Texas pipeline companies authority to seize private land under eminent domain. The Texas Railroad Commission (RRC) hands out public use permits like candy out of a Halloween bowl to these companies. In the Big Bend, Energy Transfer Partners’ (ETP) 143 mile-long Trans-Pecos Pipeline, 42” natural gas pipeline project is well underway. While most people feel uncomfortable with condemning private property, we usually accept the taking because it is for a “public use benefit” (i.e. school, hospital, infrastructure improvements). The fly-in-the-ointment is that authority to exercise powers traditionally reserved to government in Texas resides in some 7,200 private entities, including those in petrochemical enterprises.

The oil and gas industry has shown its muscle. Meanwhile, we accept their influence because Hollywood created a cultural mystique of wildcatters risking all to build economic empires powering the growth of our modern, industrial society. The reality is more akin to movies “Giant” and “There Will Be Blood.” Ironically, portions of the latter were filmed in nearby Marfa and Shafter – life imitating art.

Undue influence has been brought to bear in the halls of power. The oil and gas industry benefits from tax breaks, deregulation, and funding cuts for meaningful oversight of operations and facilities known for deleterious environmental consequences while, by and large, continuing to deny any wrongdoing or harm caused by their business model.

Both the U.S. and Texas constitutions prohibit a taking of private property without due process.  Due process involves legal rights of notice before property may be taken and the right to defend one’s property and confront the moving party in a court forum. Usually, disputes are resolved by providing the property owner proper compensation – for which reasonable people may differ.

In 2005, the U.S. Supreme Court expanded the notion of “public use” in Kelso v. City of New London (2005), allowing the City of New London to effectively exercise its power of eminent domain, providing condemned land to a private developer. The City argued—and a SCOTUS majority agreed—it would deepen the city’s tax base and provide jobs—a public benefit.

The decision raised the ire of many conservatives. Thus, in 2012, the U.S. House of Representatives passed the Private Property Rights Protection Act, H.R. 1443, according to The Hill. It was designed to “prevent states from using eminent domain over property to be used for economic development, and establish a private right of action for property owners if a state or local government violates the new rule. It would also limit federal funds to states in which property is taken in violation of the law.”

Whether or not you support taking private property, you’d likely agree that jobs and economic growth are public benefits. With regard to the Trans-Pecos Pipeline, these benefits must be weighed against Energy Transfer Partners’ agenda and record of business, safety, and environmental negatives.

Many expect that ETP’s Trans-Pecos Pipeline will deliver fracked gas to Mexican refineries for subsequent sale in Asian markets. While some jobs follow the pipeline’s construction, it isn’t targeted or contemplated to be a major “economic benefit” to the Big Bend community – except in the imagination of ETP’s media ads and public presentations.

Evolving Ethics on Corporate and Government Authority: Who Has Eminent Domain?

New London is a sovereign governmental unit operating under color of state law. Its citizens have rights enshrined in our federal and state constitutions. Their elected and appointed public servants are employees of an elected, representative government taking private property. The difference between the New London decision and Trans-Pecos Pipeline is that ETP has been given the authority to do what the City of New London is entitled to do. Not a single Texas/Big Bend voter elected ETP to anything. Evidence suggests ETP isn’t even very good at protecting the rights of its own stockholders.
Its actions tend to benefit a very small number of people in the corporate suite. It is important to understand that for-profit and not-for-profit corporations are a “legal fiction” chartered by a state to engage in certain operations in order to provide a public service. ETP comes to the Big Bend based upon an extra gift from our Texas Constitution giving pipelines a special status, which allows them to exercise eminent domain authority over private land as a “public utility” as a “common carrier.” Being legal doesn’t make it right.

The Texas Supreme Court hasn’t ruled on the constitutionality of the common carrier provision. However, legal observers note a shift in how the Court views taking private property amid a concern such condemnation may be overreaching, notwithstanding the status granted by the state constitution and common carrier permits approved by the RRC.

My law school tax professor, George Stansel, often shared his practitioner’s wisdom: “Don’t go to the Appellate Division and try to distinguish the case. Tell ‘em they’re wrong – they’re wrong!” In the matter of the Trans-Pecos Pipeline, “the wrong” is the inherent unconstitutionality of giving private enterprises condemnation authority. In opposing the pipeline, there’s merit to advocating both – being “wrong constitutionally” and “distinguishing” prior court rulings from the present set of facts.

Law isn’t carved in stone. A liberal legal philosophy sees the Constitution as a “living document” able to respond to generational changes. A conservative judicial philosophy seeks guidance from discerning the intent of the drafters of the Constitution.

Liberal paradigm shifts ended slavery, gave non-property holders and women the right to vote, eliminated “separate, but equal”, and overturned laws criminalizing the distribution of contraception information, which led to Roe v Wade. The conservative philosophy gives states primacy over the federal government in a number of areas – such as abortion – and has a dislike for the expansion of federal powers, such as under the Warren Court’s use of the commerce clause and the due process provisions of the 14th Amendment.

The Courts Respond to Public Opinion

In the year or so since the Trans-Pecos Pipeline appeared on the Big Bend’s radar screen, media reports continue to cast the petrochemical industry in a negative light. Surveys find a majority of Americans favor renewable energy over fossil fuels. This may be the ace in the hole, “assisting” the courts to react to the growing shift in public opinion.

Does the public support renewables more than fossil fuels because Exxon and Shell hid their own scientific knowledge of the harmful impact of fossil fuels on climate disruption? Is it because they opted for less costly means to burn-off excess gas contributing to greater levels of pollution? Is it because of the chemical spills polluting rivers in Colorado and West Virginia, adding to the number of communities required to turn off the tap and bring in bottled water. Maybe it is all of the above and more!

There is a clear fossil fuel link to holes in the ozone layer. Australia’s Great Barrier Reef—the largest structure created by living organisms—has shrunk by more than 50% since 1986. These are just a few symptoms. More of them can tell the story of an unhealthy planet much like lesions on skin or a cough that doesn’t seem to end. The Earth is an interconnected, living ecosystem dependent for its overall health upon the health of its constituent elements in the land air and water.

Humanity shouldn’t have had to come to the brink of an environmental tipping point of no return. People across the globe have been stirred to action and recorded victories for their efforts. The Rockefeller Foundation is beginning to divest fossil fuels from its portfolio. The Kingdom of Saudi Arabia is actively planning for life after oil. Some among the oil companies’ annual stockholders meetings discuss climate disruption and contemplate moving towards a different future. New York State has banned fracking.

Would building the pipeline in a different direction take the steam out of local resistance? I hope not because it isn’t just about our Big Bend. Stopping the Trans-Pecos Pipeline stops the construction of additional fossil fuel infrastructure and reduces use of hydrocarbons as an energy source. Doing what we’re doing raises public and political awareness to the enormous scope of worldwide environmental destruction.

We have the power to effect monumental changes hastening the demise of destructive, outdated institutions and their signature technologies. I pray that a social consciousness, placing people and the environment before profit and power, guide decision makers. By exercising our power, we advance the birth of new, life affirming forms of conducting human relationships.

Two TPPs: The Trans-Pacific Partnership and the Trans-Pecos Pipeline

Is there anything the corporate state hasn't gobbled-up as yet? The 2016-18 Texas Democratic Party platform opposed the privatization of governmental services as well as the Trans Pacific Partnership, the Keystone XL, and Trans-Pecos Pipelines. The Trans Pacific Partnership is viewed by many as a single corporation on steroids and underscores the crucial differences between a governmental service and a corporation engaging in a business enterprise.

The Trans Pacific Partnership gives corporations the right to sue governments for trade infringement practices. For example, a foreign corporation may sue a state or federal government if an environmental regulation or safe labor practice “infringes" an enterprise’s ability to engage in free trade. If regulations increase wages, benefits, or environmental protections and increase the enterprise’s cost of doing business (profits), they may sue the government.

Haven’t we come to accept many of these fair labor standards, environmental measures, and more as an advance in universal human rights? National or local government may act in ways King George III or Generalissimo Santa Anna could only envy. However, our constitutional model institutionalizes the rights of the governed versus the government and places the people in the driver's seat.
Ask yourself: 1) “Are Texas provisions allowing for eminent domain condemnation by the Trans-Pecos Pipeline – a microcosm of the larger move towards privatizing governmental services – and the Trans Pacific Partnership democratic? And 2) "Do they contain sufficient due process guarantees?"

The answers give rise to asking yourself: “What does ‘freedom’ truly mean to me?” and “What is my freedom worth to me?”

Think about that when hearing a rousing, patriotic speech by one of your federal officials celebrating the 4th of July and our American principles just before the fireworks go off.