We all remember Susette Kelo’s struggle to save her “little pink house” from the New London Development Authority’s efforts to take it by eminent domain for economic development. She fought the authority all the way to the U.S. Supreme Court, where she lost by a 5-4 decision. Justice John Paul Stevens, in his opinion for the majority, deferred to the legislature to determine what public needs justified the use of eminent domain. He added, however, that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”

Justice Clarence Thomas’ Kelo dissent would have limited the power to takings for actual use by the public. The result in the case produced a substantial backlash against the eminent domain power, with proposals in many state legislatures, pursuant to Justice Stevens’s invitation, to prohibit takings other than for strictly public uses. Although those proposals have not been particularly successful, there is still substantial popular sentiment opposing the use of eminent domain.

A current dispute in Texas presents a different type of challenge to the takings clause. Julia Crawford and her family own a farm in the northeast part of the state where they have grown corn and soy since her grandfather bought 600 acres there in 1948. TransCanada, which wants to build a pipeline from the Alberta, Canada tar sands to refineries on the Gulf Coast, needs easements across private land from the Canadian border south, to assemble the necessary right of way.

How does a private company accomplish such a land assembly? It’s not very difficult in Texas (or in a number of other states on the proposed route with similar legislation). The Texas Natural Resources Code §111.019(a) provides, “Common carriers have the right and power of eminent domain.” Subsection (b) of that statute provides that a pipeline can be a common carrier. Who determines whether the pipeline qualifies as a common carrier or is private? The operator. It merely has to check a box on an application to a state agency asserting that it will operate as a common carrier. The agency has no duty or authority to investigate or challenge the assertion. Once the application is filed, the operator (in this case TransCanada’s United States subsidiary, Keystone XL) has the power of eminent domain. It can then use the attendant superior bargaining power to coerce land owners into granting the needed easements. The only option available to those in the path of the pipeline is to obtain a lawyer and challenge the legitimacy of the taking. After weighing the cost of representation against the likelihood of success, few have done so.

Julia Crawford and her family, however, are mounting a challenge. The proposed easement over her land will cross under a creek that is the farm’s main irrigation source. Every day it will carry 590,000 barrels of diluted bitumen, a dense mix of crude oil, sand and water. A leak or spill would be disastrous for the farm, a local result that a private developer exercising the public power of eminent domain over multiple parcels is unlikely to consider. The initial hearing will be in July.

Given the deference the Supreme Court gave to the New London Development Authority’s use of eminent domain in Kelo, one initial prediction might be that the Crawfords have little chance of success. To date none of the usual public interest defenders of private property rights, such as the Institute for Justice, which represented Ms. Kelo, or the libertarian Pacific Legal Foundation, have offered to assist them. That’s unfortunate. If the condemnation of Ms. Kelo’s property by an authorized governmental authority, pursuant to a detailed plan, for the purpose of improving the economy of a distressed city, was not a public use as the Kelo dissenters asserted, then the delegation of the takings power directly to a private entity such as TransCanada, with no standards or supervision is even less justifiable.

In Kelo, there was a legislative process whereby the decision-makers could be held accountable in the next election; there was a public hearing at which the wisdom of the taking could be debated; and there was a plan independent of the benefited party, all of which were important to the court’s majority. Under the Texas statute, there are no such protections. Justice Anthony Kennedy, in his concurring opinion in Kelo, said “transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.”

In Texas a pipeline operator, without a specific legislative grant of authority or determination that its proposed pipeline qualifies as a public use, can avail itself of the power of eminent domain to acquire property for its private interests merely by asserting that it is a common carrier. In the Crawfords’ case, it seems clear that the delegation of the eminent domain power to a private entity is primarily for the benefit of that entity. Perhaps the Texas courts will afford the Crawfords a remedy. If not, perhaps another Kelo is in the works.•