Belated Happy New Year — And Let’s Talk Keystone XL!

Belated Happy New Year, Readers!

We’ve been on a final exam/holiday/traveling/beginning of the semester hiatus. But we will be blogging regularly again beginning this week. We’ll be kicking that off with my regulatory takings series later in the week, and then Logan will be back with his work on physical takings and some other issues he’s working on. Sometime this spring there will be another book review or two. I’ll also return to the weekly suggested readings in “Reading Around the Internet”. Oh, and look around — there’s been some changes to the design of the blog. You’ll notice that we’ve added keywords on the top menu so that you can find our takings series, as well as other popular topics more easily. I hope the site is more navigable and user-friendly than it was before!

Before we do anything else, though, I thought maybe we’d kick things off with a brief discussion of the Keystone XL Pipeline….

Everyone who listened to the State of the Union Address knows that the Republican response included a discussion of the Keystone XL Pipeline project as a “jobs bill”.  The President made a passing reference to it in his discussion of energy policy, though he did not explicitly mention the pipeline. The Republican framing caused quite a stir in many circles, but I thought something else was interesting about the discussion: in a Washington, D.C. vortex of Presidential State of the Union and Congressional politics, the comments were made with hardly even a hint from either Congress or the President that these discussions were occurring in the same week that, according to The New York Times, Keystone XL began its condemnation proceedings in Nebraska. The point of these proceedings is to acquire the land Keystone XL needs to build its pipeline. These are not the first condemnation proceedings brought by Keystone XL, nor will they be the last; but they were the ones filed the same week as the State of the Union speech and the Republican response. Therefore, they are now getting a lot of attention.

Nebraskans responded to the condemnation proceedings by filing lawsuits against TransCanada Keystone Pipeline seeking declaratory judgments as well as temporary and permanent injunctions. Filed in state court, their lawsuit alleges a breach of property rights in violation of the Nebraska Constitution, as well as making various other legal claims (including some fascinating discussions around the nature of separation of powers). Claims like these are not new, as you can see from this Forbes article from a year ago. You can also get a sense of the landowners and their issues from this article in The New York Times.

Of course, the siting of a pipeline through multiple states is bound to cause problems… In multiple states.

Down in Texas, land owners have refused to come to agreements with Keystone XL, and as a result there, too, the company has sought condemnation proceedings. We will hear more about condemnations in various states where the pipeline is to be built. Landowners are not well known (especially ranchers and farmers) for happily giving away their land most of the time. Even when a fair market value is assigned to the land in some sort of agreement (either a sale or potentially the purchase of an easement), rural residents who depend upon their land for long-term income (as well as the ability to secure loans to grow their businesses) are rarely happy to give up a lot of acreage.

So a few preliminary thoughts — with the caveat that I’m still thinking all this through and these are ideas about the consequences of a building project such as this one, and not predictions of future political intrigue:

Many, many years ago when this project was first proposed, I was aware that not only many environmental groups, but also property rights activists would be interested in the building of the pipeline. Anytime you condemn land to build something like a pipeline (or a railroad), there will be landowners who will take issue with the action. These protests are a long, historical and legal tradition in the US. And their protests will slow the process down. Another part of this long, historical tradition in the US is that these major construction projections done under the guise of a public purpose and for the public interest involve (a) large tracts of rural land; (b) potential jobs in the areas where the construction project will be done; and (c) private corporations working with the federal government on the project. Now, rural communities often do not have a lot of political power. Often times, the jobs that come in bring with them migrant workers who do not stay after the job is done. And as for those private corporations — multimillion dollar enterprises with little if any interest in the specific towns and communities where the pipeline is built, will then reap the profits from the pipeline itself. This is all part of a very long tradition.

In the nineteenth century, the railroads and federal government found many ways to solve some of the political and legal issues so that the project of building a transcontinental railroad could proceed. However, we know that a century a later, those solutions bring new difficulties that some future US Supreme Court may have to decide. A great example is the Brandt case, which I blogged on last year when it was decided by the Supreme Court. Also, our rural citizens, when the love of their land and their traditions are at stake, can dig their heels in when it comes to condemnation proceedings. Nebraskans and Texans are already showing us what this looks like. I don’t see any of these landowners caving quickly, so expect some prolonged fighting in court in multiple venues.

Like the railroads built in the nineteenth century, the pipeline is said to be needed for a public purpose and for the public interest. Our eminent domain law will likely allow the government and Keystone XL to proceed as long as they can make this argument persuasively to the judges hearing the cases. The caveat, here, is that the lawyers for the property owners may be able to find some hidden nuggets in their state constitutions and various state legislative initiatives designed to protect private property interests that they can use to at least slow things down if not actually stop them altogether. That’s because this is an area of law that developed dramatically in the past forty years or so through the work of a wide array of property rights movements, often working in state legislatures. And in an unusual political alignment, the lawyers for landowners will find that there are environmentalists cheering them on and willing to help though their political connections to the Democratic party. That should make for some fascinating congressional hearings, as well as state political discussions.

Here’s some other thoughts (maybe even some predictions):

First, it will be some time before that pipeline is built. Courts move slowly, and understaffed courts move even more slowly. While some of this is occurring in state courts (and I do not know the status of state litigation processes in Nebraska or other states where the pipeline condemnations have begun), eventually there will be federal judges involved. If I were the lawyers in these cases, I’d keep my case in state court as long as possible because federal court will hold its own complexities legally, as well as in terms of the time frame in the litigation.

Federal courts are, in many places, understaffed and flooded with litigation… So, the Republican Congress, if they want this pipeline to go through, may want to get those federal district courts (and their appellate courts) staffed pretty darned soon, and they may want to try to get the cases moved to federal court because the status of eminent domain law there may prove more helpful to them than state property law. Of course… That means they have to deal with President Obama, who will be nominating those judges, and may not want to nominate judges who are necessarily what the Republicans would prefer… And certainly, it would be the current administration that, working through the Justice Department, would be defending any federal litigation on this issue. It strikes me that would sort of be like helping the Republicans out given the current political dynamics around the pipeline… Checks and balances are great! So these court battles will be prolonged in state courts… If we get a new President and he’s a Republican with a Republican Congress to work with, those cases may move into federal court more quickly and the pipeline may be built a little faster.

Second, keep an eye on what happens during the next election cycle (which is already starting to get revved up) in areas where there are condemnation proceedings going on. I won’t predict that Republican strongholds will swing to the Democrats’ column. I will suggest, however, that some very savvy politicians will be attempting to make precisely that occur. I would think that we’d see more third party activism in those same places as voters choose not to vote for either Republicans or Democrats. That usually has consequences for elections. In fact, if the election is a close call between the Republicans and the Democrats, this sort of activity can change the outcome. (It can also make it very difficult for pollsters to predict election results!)

Also, watch the state legislatures in the states that the pipeline is supposed to go through. If enough of their voters are upset by the condemnation proceedings, there will be shifts there. But the catch will be this: are there major population centers in the state that support the pipeline? If so, the state legislatures will be able to withstand the storm coming out of their rural communities. Votes matter — who votes matters, but so does the issue of where the money comes from for election campaigns. Typically, votes and money come out of areas with larger populations. So there may be no change if those large populations support the building of the pipeline. Yet there could be some shifts in states where rural communities have more of a stronghold in their state legislature.

Finally, a thought drawn from sociolegal research on legal mobilization and its political consequences: judicial politics can have far reaching and indirect effects.  A lot of times we think that this only happens when the Supreme Court makes a major ruling. But in fact, state level and federal district level litigation, when it receives attention, can have very interesting impacts on other parts of the political system. I guess my main point here is this: not only are there property law and federalism issues involved in these lawsuits, I think it’s likely there will be electoral and other ramifications in some areas of the country. Keystone XL, which is mostly being framed in Washington as a federal level jobs bill or an element of an energy policy, is more than that, and therefore well worth watching.

Greeley and Evans: Didn’t Happen, But…

Unfortunately, I did not make it to Greeley or Evans today. I got stuck in traffic fairly early on, and was losing time on my last day in Colorado. I decided to head back to Longmont where I could do some work on the St. Vrain and rent gouging in Boulder (two other posts I’ve been working on while here, but require a bit more research).

After I got back to town, I realized in relatively short order that it was good that I had not gone out there: while Greeley, according to the local newspaper, seems to be getting back on its feet and some of the main roads are open, several county roads in the area remain closed, and much of 34 in the business loop is also inaccessible to the public. This meant I would not have been able to see some of the areas I was most interested in very easily (i.e., how the local business community is faring as well as how the farming and ranching communities are doing). So, after spending time finishing up research on two other posts I’ll be publishing when I return home, I thought I’d summarize some of what I learned in preparation for the tour of Greeley. Some of this will just be review for the Coloradans who have been visiting the blog the last few days (thank you, by the way — love having new readers!). But for those outside the area, it just might be brand new.

As Coloradans know, Greeley, which is the county seat of Weld County, and the area around it were very hard hit during the flood. Here’s a link to raw footage produced by ABC7 News of the floods in Weld County. The extent of the flooding is breathtaking. Trailer home communities were devastated, cattle were stranded, and fields were either drowned or silted away. Many county roads were damaged or washed out, not to mention the serious damage to the main transportation  arteries into Greeley.

Unlike the communities I visited yesterday, Weld County is in the Colorado Piedmont. When I first read about Greeley and saw the photos from Weld County, I was in Carbondale. I had the impression that Greeley was a small farming community — it was a very wrong impression. Greeley has over 92,000 people in it, and Weld County has farmers, ranchers, immigrant communities who work on the land and in the city, mineral extraction industries, and food processing businesses — as well as being home to the University of Northern Colorado. The severe flooding in the area means very large numbers of people are directly affected, and indirectly the various industry and business in the area will affect the entire state as well as parts of the country.

Located in the high plains of Colorado, Greeley, Evans and the other communities in the county are part of the Colorado Piedmont. For those unfamiliar with the geography of Colorado, Greeley is north of Denver. The map below should give you some idea of the difference in land formation between the Front Range communities and foothill communities where I was yesterday and the plains communities of the piedmont:


You can see on the map that most of Colorado’s population centers are in some part of the plains in the state. While the area is definitely lower than some of the high plains that sit to the north and east, the elevation of Greeley is over 4500 feet. As I already mentioned, the 2010 census showed a population of over 92,000, so we are not talking about a tiny town surrounded by farms. The census shows that the city is approximately 34% Latino and 55% white. The rest of the population is made up of a mix of other races. Greeley has also had a fascinating history if you’re interested in the western US. (There is a Greeley History Page here.)

The South Platte River runs along the southern boundary of Greeley and its neighbor Evans, while the Cache la Poudre River runs to the north. During the floods, I posted a link to photos taken by NASA. These were shots of the swollen South Platte River, and showed clearly that many roads were washed out, and a chunk of Greeley and Evans as well as the agricultural areas along the river were inundated. Indeed, those roads are not all open, though as I mentioned the main arteries have been cleared and are, at least along Highway 85, accessible. However, because of Greeley’s particular mix of dense population, agriculture and oil and gas industries, its recovery process is going to have some special challenges.

Flood recovery in agricultural communities is a particular interest of mine since I have gotten to know some of the folks who were impacted in agricultural and rural communities in Missouri and southern Illinois during the 2011 floods along the Mississippi. I think we often do not realize just how terrible an inch of silt can be for a farmer, let alone heavy silt or major soil erosion. Or how difficult it is to evacuate livestock and move heavy machinery on short notice. And imagine, what would happen if a flood hits just as the harvest has begun or in the middle of it? A year of work — not just in profits, but hard, hard work — gone in a few hours of intense flooding.

You may be thinking, “Well, they have crop insurance,” but that may not be true. Or it may be true, but crop insurance will not make up for the loss of a field to heavy silt. Depending upon where the farmer lives, flood insurance may not be a viable option financially. Much of what happens during evacuation and recovery, then, depends upon the business decisions made by the farmers and ranchers long before the flooding. Those decisions rest upon several factors, including the size of the farm or ranch, how much acreage is in crops and what kinds of crops, the livestock they produce and how much they have to move, the time of year of the flood, where the farmers are in the planting-growing-harvest cycle, where the livestock can graze, and so on and so forth.

Agricultural communities are complex, and during a disaster of any sort those complexities can make knowing what to do under the pressure of a sudden evacuation all the more difficult for the farmers and ranchers during the event itself, as well as the various relief organizations helping them get on their feet during the recovery process (if they get any help — often they do not since they are “just farmers”). The loss of a field (depending upon the size of the field) or a grazing pasture can be very damaging for farmers and ranchers in the long-term. Damage assessments should, I believe, take long-term effects of loss of profits into consideration somehow, not merely assess the immediate damage, particularly for family farmers and family ranchers.

I would think that these complexities are aggravated because Greeley is no small town and has its own damage to deal with. It’s large and is densely populated. The agricultural communities and the city have a relationship to one another that means if one is hurt, the other will also hurt. If both are hurt, the damage and pain is exponentially increased. This is why the fact that county roads continue to be closed or difficult to access is not good for the city, just as having the main business loop in the city inaccessible (for the most part) is not good for the agricultural community.

Moreover, there are multiple industries in the area. Some have to do with food and food processing, but there are other industries as well. Back on September 19th, the Greeley Tribune reported on 12 spills from oil and gas facilities in Weld County which had dumped oil into the floodwaters. While most of those spills were not large, two of them dumped over 19,000 gallons of oil into the water. While gas and oil spills are not rare during an extraordinary flooding event, they do add to the contamination that always comes with flood waters (think contaminants like mold, or other chemicals that enter the water through saturated building materials, etc.). US News also reported the story on their website, and included some disturbing photos of oil in the flood water. The Denver Post, similarly, reported the story, identifying some of the spills as having occurred south of Milliken. They, too, provided disturbing imagery of both washed out roads and oil filled floodwater.

More oil spilled in the weeks following those reports, and on October 2nd CBS Denver reported that the total number of spills was up to 15, and that together they had released 43,000 gallons of oil. Because roads were damaged and areas were still flooded, Colorado Oil and Gas Conservation Commission officials told CBS Denver that the assessment of the damage could take up to 90 days.

One of the questions I wanted to explore (and will continue to look into when I go home) concerns these spills: given how swollen the South Platte was and how far the water moved, where did that oil go? Is it settling into farmland? grazing land? Will it move into the water table (and, along with that, how deep is the water table in the area)? How is an oil spill made up of crude oil (as some of this was) different from a spill of refined oil? If it is taking longer to clean it up because roads are closed or washed out, how will that affect the land where the oil is sitting? And the waterways? And the groundwater?

I’m a political scientist, not a scientist, but my interest in environmental policy and property law is piqued here. What redress will landowners (of all kinds) and other property owners (of all kinds) have if they are affected in some way by the oil spills? What about non-property owning residents?

And, by the way… While chemical and oil spills are not unheard of during a flood, they do not happen every time a flood occurs. What exactly happened in this case?

Taken altogether, I am sorry I was not able to visit the area, and will be watching, listening and researching what is happening from afar. I hope to come back and spend some time there (more than a day, since there’s more than a day’s work to do) understanding the intricate problems residents are facing. Weld County’s recovery challenges are great, and do not involve simple clean up of debris and rebuilding. Transportation routes must be cleared and rebuilt as soon as possible to make other work possible. Residents and businesses will need help with soil remediation (to what extent we do not know yet) as well as making certain contaminants are removed from the water (if they make their way there) so that Weld Countians have a healthy and safe environment to live in. Farmers and ranchers will need help replacing their buildings as well as machinery, let alone livestock, seed, and depending upon where they were in the planting-growing-harvest cycle, financial resources to tie them over until a new crop and more money can be brought in. And, in addition to all that (as if it weren’t enough), making certain oil and gas producers are using best practices in securing their storage facilities — and perhaps helping them think through how to do it better — seems in order.

PS: And yes, I know I haven’t talked about the fracking issues, but I promise I’ll get there!)