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.

Barron v. Baltimore

In August of 1831, the Supreme Court heard its first case in which a litigant claimed that one of his rights protected by the Bill of Rights had been violated by a State government. This was the case Barron v. Mayor and City Council of Baltimore (32 U.S. 243, 1883), and it so happens that the right alleged to have been violated was the right against uncompensated takings protected by the Fifth Amendment.

Barron v. Baltimore

John Barron was a Baltimore merchant, and co-owner (with John Craig) of a prosperous wharf in the eastern part of Baltimore harbor. Craig and Barron purchased the wharf in 1815 for $25,000. At the time it was one of only 34 wharves in the harbor. In the trial record, numerous witnesses described as among the best and most valuable wharves in the city, due to its location and the depth of the water surrounding it, which allowed for access by very large ships.

As part of a larger public works project, the city of Baltimore diverted several streams into the harbor directly adjacent to Craig and Barron’s wharf. Within a few years, sedimentation from the streams left the water there so shallow that Craig and Barron’s wharf could no longer service large vessels. In 1822, Craig and Barron sued the city for compensation (they asked for $20,000) for the decline in value of their wharf. The three judge panel instructed the jury that Barron should be awarded damages commensurate with his loss (if they find there to be such loss), even if they believe the defendants were acting in good faith for the public good. In March of 1828, the jury returned the verdict in favor of Barron, awarding him $4,500 (Craig had died by this time), which the court endorsed on May 5, 1828.

Baltimore appealed the verdict to Maryland court of appeals on July 31, 1828 (the case was argued in December of that year). The Maryland appeals court did not issue its decision until December of 1830: it held that the lower court had “manifestly erred” and ordered that the ruling “be reversed, annulled, and held entirely as void.” The award to Barron was overturned, and he was ordered to pay all court costs (the case was not remanded for retrial in the county court).

Barron immediately appealed to the United States Supreme Court, and the case was argued there in August 1831. Barron claimed that the city of Baltimore had unconstitutionally deprived him of his property without compensation, and was thus liable for damages

The Court indicated in the record a request that counsel for Barron restrict his argument to the jurisdictional question (and thus omit the tort and damages claim)). This was an inauspicious development for Barron – it meant that the Court was likely only to consider the technical legal matter of whether it (the Supreme Court) even had the power to rule on a case such as Barron’s, and would not consider the alleged damages. The Court announced its decision in January of 1833.

Barron was thus the first case in which the Supreme Court was confronted with the argument that a provision of the Bill of Rights was violated by a state government. Marshall acknowledged that this case was an important one for this reason – but, he says, one “not of much difficulty.” Marshall, speaking for the Court, argues that the central purpose of the Constitution was to create, yet limit, a new, central government – thus the provisions therein are applicable to the government created thereby. Put differently, the Constitution simultaneously created and limited a new central government – thus those limitations apply only to the central government. This argument clearly harkens to Alexander Hamilton in the Federalist 83: “The United States, in their united or collective capacity, are the OBJECT to which all general provisions of the Constitution must necessarily be construed to refer.” That is to say, it fit well within the accepted understanding of the Constitution at the time.

Marshall argues further that the provisions of the Bill of Rights fit with Article I, Section 9 (limits on Congress), and that if the Framer’s had wanted to limit the states, they could have and would have done so in “plain and intelligible language.” Thus because the Bill of Rights applies only to the federal government, Marshall concluded that the Supreme Court had no jurisdiction in the matter, and dismissed the case.

With the Supreme Court having dismissed the case, the decision of the Maryland Court of Appeals stood. Barron lost, and state (and by extension, municipal) authority to exercise broad powers over their internal affairs – including impinging on the free use of property – was affirmed. The flip side of that coin is, aggrieved individuals and groups could only seek protection of their rights in state courts, pursuant to state constitutions (in most cases).

This is no longer how things work. Individuals and groups now routinely make claims in federal courts that state or local governments have violated rights protected by the federal constitution. This is because of the so-called Civil War Amendments (13, 14, and 15 – especially 14), which fundamentally altered the nature of government in the United States. In a future post, I’ll discuss the 14th Amendment and spend some time elaborating how exactly it changed the way people make rights claims under the federal constitution. I think this case is still worth knowing because it helps us to understand how we got to where we are today – and reminds us that federal courts have not always been the ardent protectors of rights that they are often thought to be today.


An interesting historical aside: In 1827 (while the case was still in Baltimore county court), Roger Taney joined the case to represent Baltimore (alongside principal attorney John Scott), though Taney was no longer associated with the case when it reached the Supreme Court. Taney would go on to become Chief Justice of the Supreme Court (1836-1864), and authored one of the Court’s most infamous decisions, Dred Scott v. Sanford (in which the Court held, among other things, that African-Americans were not, and could never be, citizens of the United States).


Suggested Reading:

Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.

Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833).

Doherty, Brendan J. 2007. “Interpreting the Bill of Rights and the Nature of Federalism: Barron v. City of Baltimore” Journal of Supreme Court History 32(3): 211-228.

Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.

Hamilton, Alexander (as Publius). The Federalist No. 83.