Jane Kleeb of Bold Nebraska, a Keystone XL foe.
Josh Israel and Katie Valentine at ThinkProgress
have taken note of how organizations like the Institute for Justice and Heritage Foundation that are normally at the forefront of property rights advocacy have been dead silent about TransCanada's taking of people's land to build the Keystone XL pipeline:
“I have not seen a single group that would normally rail against eminent domain speak up on behalf of farmers or ranchers on the Keystone XL route,” said Jane Kleeb, founder of the anti-Keystone group Bold Nebraska.
That’s surprising to Kleeb, whose organization is supporting the efforts of a group of Nebraska landowners along the pipeline’s proposed route who have held out against giving TransCanada access to their land. She had thought that at least a few conservative or pro-lands rights groups would have voiced their general support for Keystone XL, but still denounced the use of eminent domain to get it built. That hasn’t happened, Kleeb said — not among property rights groups nor among most pro-Keystone lawmakers.
“If this were a wind mill project or a solar project, Republicans would have been hair-on-fire crazy supporting the property rights of farmers and ranchers,” she observed. “But because it’s an oil pipeline, it’s fine.”
The managing vice president at the Institute for Justice, for instance—a quarter-century-old libertarian group funded to the tune of $2.5 million by David and Charles Koch—told the two reporters that its efforts are devoted to making sure eminent domain is reserved for "traditional public uses" and that it doesn't take a stand on pipelines or Keystone XL. The Koch brothers are the largest foreign holders of leases in the Alberta tar sands, whose petroleum would be carried by KXL.
Check out the other organizations keeping their lips zipped on the matter of the pipeline below the fold.
Besides the Institute for Justice, here are some other organizations that have not weighed in on protecting property rights of land owners opposing TransCanada's use of eminent domain for private gain:
• The Heritage Foundation: recipient of more than $500,000 from the ExxonMobil foundation and more than $5 million from the Koch Brothers’ foundations.
• Americans for Limited Government: more $7 million from the Koch-associated American Encore (previously named the Center to Protect Patient Rights).
• The aggressive climate change-denying Heartland Institute: more than $500,000 in ExxonMobil money, more than $100,000 from the Kochs, and at least $25,000 from the American Petroleum Institute.
• The American Conservative Union: more than $50,000 from the American Petroleum Institute and more than $90,000 for its foundation from ExxonMobil.
No big surprise, in Congress there is more hypocrisy in this matter.
In 2005, the U.S. Supreme Court ruled 5-4 in Kelo v. New London in favor of the Connecticut city of New London over its approval of a private redevelopment plan. Land owners, including Susette Kelo, sued to stop the taking of their homes. The decision attracted massive criticism from the left and right for arguing that “the government’s pursuit of a public purpose will often benefit individual private parties.” The Institute for Justice had represented Kelo in the case.
In the House, 365 U.S. Representatives decried the Court's decision with a resolution that:
Expresses the sense of the House of Representatives that state and local governments: (1) should only execute the power of eminent domain for the public good; (2) must always justly compensate affected individuals in accordance with the Fifth Amendment; (3) should never use eminent domain to advantage one private party over another; and (4) should not construe Kelo as justification to abuse the power of eminent domain.
Eighty-eight of those members who voted against
Kelo a decade ago and are still serving in Congress recently voted in favor of going around the president to approve the building of Keystone XL. President Obama vetoed that decision last week.
Naturally, lawyers have different views about the matter, Israel and Valentine note:
This reluctance among supporters of property rights to extend to this case that outrage over a private business having power over an individual’s property could have several origins. Alexandra B. Klass, a professor of law at the University of Minnesota Law School, said he thinks property rights groups mainly take an anti-government position, so they are less likely to object to private pipeline companies using eminent domain. James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus at Vanderbilt University, says it’s the common carrier piece of the puzzle that’s key: the developers in Kelo weren’t classified as common carriers, and thus “owed no legal duties to the public.”
One of those traditional public uses is for "common carriers." This status typically is assigned to regulated transporters of people, goods as well as telecommunications and utilities provided to the general public without discrimination. Many, but not all, pipelines are included in this category.
Arguing that this is all simply a matter of legal interpretation, however, ignores the political and financial connections of these organizations that normally scream loudest when private property is condemned for public use.