If you are a citizen who believes in constitutional rights to private property, be prepared for outrage.
I've included, verbatim, an excerpt from the Texas Utilities Code, Section 121.001 on a very important section of that legislation:
“Sec. 121.001. DEFINITION OF GAS UTILITY.
(2) owns, operates, or manages a pipeline:
(a) that is for transporting or carrying natural gas, whether for public hire or not; and
(b) for which the right-of-way has been or is hereafter acquired by exercising the right of eminent domain…”
The complete reference is statutes.legis.state.tx.us/Docs/UT/htm/UT.121.htm#121.001.
TUC 121.001 (2) defines anyone who owns or operates a gas pipeline in the state of Texas as a gas utility as a form of common carrier and in turn entitles that entity to access to the powers of eminent domain condemnation.
Without regard to one's personal position, either in support or opposition of the proposed Trans-Pecos Pipeline, as a citizen you are likely concerned about private property rights.
Eminent domain is a collection of powers intended for use by the government. Unfortunately, corruption has allowed delegation; the government has granted these powers to for-profit companies.
In essence, the power to take private property through eminent domain condemnation requires:
• due process
• that the taking is in the public interest, for the public good
• fair compensation
In this case a single clause in code completely removes any avenue for due process.
This clause completely removes any challenge to a gas pipeline owner or operator, relative to their entitlement, to the powers of eminent domain condemnation!
The entire process, administered under the “regulatory auspices” of the Railroad Commission of Texas, thwarts due process:
• no permit is required to build an intrastate pipeline in the State of Texas
• no public hearings, no mechanism for public comment, no environmental oversight required
• no method of challenging the routing of the pipeline
• no proof required, nor any debate about the public interest or public good
If you are the owner or operator of a gas pipeline, you are a modern-day king or queen with the ability to take without due process another's private property.
This flies in the face of both the U.S. and Texas constitutions. It is a gross abuse of the power of eminent domain and a classic case of unconstitutional takings.
In short, it is fundamentally wrong.
This legislation was clearly created on behalf of monied, powerful special interests colluding with the Texas Railroad Commission—an agency that for all intents and purposes might as well be owned and operated by private industry.
Together they create a powerful instrument of the state whose business is to take private property in a way that is arguably unconstitutional.
Many of you affected by the proposed Trans-Pecos Pipeline project may have willingly negotiated with and sold easements to Trans-Pecos Pipeline LLC.
No judgment is being made in that case, and I fully support private property rights—you are exercising those private property rights in such a transaction.
Unfortunately, I know personally many of your neighbors who do not wish to grant an easement to Trans-Pecos Pipeline at any price.
They do not wish the proposed pipeline to cross their country. Their right to say no is equally important to your right to say yes.
Sadly, the twisted legislation, the corruption of power that we live within and under, has stripped their right to say no.
Our “good neighbor” Trans-Pecos Pipeline is busy this holiday season—as is its sister project, Comanche Trail Pipeline LLC—threatening various landowners, including those who object to the project in whole or those who object to even one of their ludicrous terms:
• easements granted in perpetuity
• arbitrary use of the easement, for any hydrocarbon product
• the ability to change the topography of the land and erect fences and gates
• inflexibility in the alignment or any other term in their “agreement”
Landowners are being offered $5.40 to $10.55 per linear foot of easement as a one-time payment.
Market-based pricing in other areas, like the Eagle Ford or Barnett shale regions, is in the neighborhood of $84 per linear foot.
The company is offering no flexibility on the terms of the easement agreement. If the landowner resists, the company is filing for grant of a temporary restraining order and injunction against the resistant landowner, along with a civil lawsuit seeking damages of $100,000, legal fees, court costs and threat of eminent domain condemnation.
If you're not thoroughly outraged yet, here is a link to an actual easement agreement, from Trans-Pecos Pipeline LLC, that area landowners are being “asked” to sign:
This “agreement” is lopsided in favor of Trans-Pecos Pipeline, while placing the landowner in an unfavorable and unbalanced situation.
In the coming months, you'll see more news and associated initiatives from area organizations that will seek ballot initiatives to strike the language in TUC 121.001 and associated statutes, enlist citizens to voice their concerns, and participate in the legislative “sunsetting” of the corrupt Railroad Commission of Texas.
I urge you to educate yourself, research these issues, support the ballot initiatives and candidates who may help reform, and by these and/or other means eliminate corrupt and unconstitutional laws and agencies.
In the meanwhile let the outrage sink in.
A government and our representatives, through our own negligence, have allowed the unconstitutional taking—theft—of private property to become business as usual.
Let the outrage build as your neighbors suffer the consequences of low-ball damage payments and easement terms that are slanted against and harmful to area landowners.
Watch as a multi-billon-dollar corporate consortium takes by force, through the courts, land from area property owners.
Sit by while these billionaires take private property to enrich themselves at the expense of U.S. citizens to supply U.S. energy resources to a corrupt foreign government, Mexico’s.
Sufficient outrage is available for us all in this horrific process.
This op-ed was originally published in the Alpine Avalanche on Dec. 31, 2015.
Coyne Gibson is a member of the Big Bend Conservation Alliance.