Eminent Enbridge Domain
Eminent Enbridge Domain
by James Botsford
Enbridge Pipeline Corporation is a multi-national corporation based in Canada. In the early days of the feeding frenzy created by the discovery of frackable oil in the Bakken oil fields of Western North Dakota, Enbridge moved in.
They put on nice suits and went to visit with the kind and apparently trusting state government officials. I suppose they said they were world-wide experts in such matters and knew how to help North Dakota plan for the most efficient and expeditious way of capitalizing on this oil boom.
That plan included declaring Enbridge to be a “public utility” and giving Enbridge the power of Eminent Domain. This gives Enbridge the authority to condemn land and take easements for the purpose of constructing its privately owned pipeline to get the oil out of North Dakota, through Minnesota and onto ships in Duluth/Superior where it can be sold to the highest bidder on the world market.
It is important to note that unlike a rural water line system or a rural electrification project that would provide services to the properties it traverses, in this case there would be no service provided to any property owners. Indeed the point is to get the oil out of the state as quickly as possible.
The only oil to come out of the pipeline along the way would be from spills and leaks – phenomena with which Enbridge has much experience. More on that later
This proposed pipeline, called the Sandpiper Pipeline, would be 24” in diameter and pump up to 300,000 barrels of oil each day from the Bakken oil fields to the Great Lakes.
Minnesota, to their credit, has been much more circumspect. They have not declared Enbridge to be a “public utility,” nor have they approved the pipeline route proposed by Enbridge.
In North Dakota on the other hand, the Public Service Commission quickly and quietly approved the route Enbridge proposed by finding that it was a safe and suitable route based on the fact that Enbridge had reviewed it (their own proposal) and declared it to be so. It apparently did not occur to the Public Service Commission that such a process was akin to asking a fox for an objective assessment of a hen house.
“Eminent Doman” is the power of a governmental entity to take private real estate for a public use, with or without the permission of the owner. The concept goes back at least as far as biblical times. It appears in the Fifth Amendment of the U.S. Constitution which states, “…nor shall private property be taken for public use, without just compensation.”
As the language indicates, the taking of private property has traditionally been limited to necessities of public purpose, such as building a community flood dike or a rural water line to serve residents along its course. There have been many legal battles over what is a “public use” and what is “just compensation.”
The scope of what is a “public use” took a dramatically expansive turn in 2005 in Kelo v. New London, a U.S. Supreme Court case. The case involved private homes in a neighborhood area of New London, Connecticut.
Pfizer Pharmaceutical Corp. approached the City and said they wanted to build a corporate headquarters along the river where this neighborhood now stood.
Their plan included a large parking lot and a park. Pfizer promised jobs and tax revenue. The City gave the New London Development Corporation the power to condemn the land for Pfizer, which it did. Many of the homeowners were understandably angry.
Some of the homes had been in the same family for over a hundred years. Some residents, now elderly, had been born in their homes and never lived anywhere else. They got together and filed a lawsuit to protect their rights to their private property. The case made it to the U.S. Supreme Court which ruled 5-4 that this taking of private property for a corporation’s purposes was a “public use.”
After the homes were purchased by the City and either moved or destroyed, Pfizer merged with another corporation and decided to change its plans and move elsewhere. All the residents have been displaced, the City is out $78 million and the parcel of land is vacant as of 2014 except for part of it being used as a dump after a hurricane in 2011.
Curiously, although it was the four most conservative Justices on the Court who voted against this expansive interpretation of “public use” my wife and I have found very little support for our position among our Republican friends.