The Keystone Pipeline is Dead

The keystone pipeline was an oil pipeline system in Canada and the United States commissioned in 2010 and owned by TC Energy it was to run from the Western Canadian Sedimentary Basin in Alberta to refineries in Illinois and Texas and also to Cushing Oklahoma. The pipeline had significant opposition from environmentalists. In 2015, it was temporarily delayed by President Barack Obama. On January 20,2021 President Donald Trump took executive action to move the project forward. On January 2021 President Joe Biden signed an executive order to revoke the permit. On June 2021 TC Energy abandoned plans for the Keystone XL pipeline. Many American and Canadian Aboriginals opposed the Keystone Pipeline for various reasons including possible damage to sacred sites, pollution and water contamination. Locally caught fish and untreated surface water would be at risk for contamination through oil sands extraction and are central to the diets of many indigenous people. Eminent Domain was used extensively by TransCanada to acquire easements over private property. There were 34 takings against landowners in Texas. Twenty-two actions in South Dakota. Many owners agreed to grant easements obviating the need of condemnation. To garner support for the project, TransCanada claimed the project would put 20,000 workers to work and add $7 billion to the economy. In July 2013, President Obama stated “the most realistic estimates are this might create maybe 2,000 jobs during construction of the pipeline, which might take a year of two, then after that we are talking about somewhere between 50 and 100 jobs in an economy of 150 million working people.” Many were concerned that Keystone XL would not provide petroleum products for domestic use, but simply facilitate getting Alberta oil sands products to American coastal ports on the Gulf of Mexico for export to China and other countries. There was wide spread fear of safety issues including possible explosions and other risks. President Obama cited the urgency of climate change as a key reason for his decision to reject the pipeline. In fact, Tar Sand oil is thicker, more acidic, and mor corrosive than lighter conventional oil which increases the likelihood of that a pipeline carrying it will leak. Indeed, one study showed that between 2007 and 2010, pipelines moving tar sands oil leaked three times more per mile than other pipelines. Since it went into service in 2010, the original Keystone Pipeline system has leaked more than a dozen times. Complicating matters, leaks can be hard to detect. It is also more difficult to clean up since it sinks immediately to the bottom of a waterway. The fight marked the first-time activists targeted a piece of oil infrastructure as a way to communicate the need to disrupt business as usual in defense of the climate. The result of a decade of stop and go progress is a patchwork of infrastructure strung over almost the entire route, from the starting point of Hardisty, Alberta, where a pumping station was built to the junction in Steele City, Nebraska where XL was supposed to join the existing Keystone Pipeline that runs to Texas. There are 90 miles of Keystone Pipeline in the ground. There is also a string of land easements stretching the entire length of the entire length of the route. These easements by their terms, may be invalid. It is important to read each easement for they may provide that they are only effective for the Keystone Pipeline. An example can be found in railroad easements which provided that if the railroad use ceased the land reverted back to the owner. There also the many untried condemnation cases, many in Texas which must be resolved. These are all partial takings involving Severance and Consequential damages to the remainder. Pipeline cases will always involve consequential damages for the fear of explosions and leaks.


Sometimes a condemnor does not take all of an owner’s property. A partial taking is a frequent occurrence in a street widening. But it may also occur in takings for sewer lines, electrical transmission lines, or gas lines.


As a general rule, the measure of damages in a partial-taking case is the difference between the fair market value of the whole property before the taking and the fair market of the remainder after the taking.  Acme Theatres Inc. v. State of New York, 26 NY2d 385 (1970); Diocese of Buffalo v. State of New York, 24 NY2d 320, 323 (1969).


The fact that there was a partial taking does not automatically mean that there has been damage to the remainder. ‘It is widely accepted that a partial taking does not itself cause a consequential loss***. Damages for such a loss must be based upon either the opinion of an experienced, knowledgeable expert*** or an actual market data showing a reduction in the value of the remainder as a result of the appropriation.’ Zappavigna v. State of New York, 186 AD2d 557, 560 (2d Dept. 1993).


Posted in Condemnation Procedures, Keystone Pipeline, Partial Takings
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