Due to the international nature of the Keystone XL, Secretary of State Hillary Clinton's team is tasked with granting a thumbs up or down to TransCanada's request for a presidential permit to build and operate the U.S. portion of the pipeline infrastructure. The its 327-mile section in March 2010.
The State Department is in the midst of updating a draft environmental impact statement for the project. Any day now, department officials could address how they plan on addressing the shortcomings in that initial draft. A final decision on the multi-billion dollar pipeline proposal is expected sometime this year.
Though TransCanada had been expecting approval in the first half of 2011, a the company released in mid-February on its predicted a decision would be more likely to come after June. TransCanada also expects the price tag to rise because of currency swings, evolving regulatory requirements and permitting delays.
How TransCanada Does Business
While a presidential permit is a significant part of the construction equation, TransCanada still is responsible for gathering the appropriate permits required by different state agencies and complying with state statutes.
TransCanada spokesman Terry Cunha emphasized that the number of easements procured via mutual agreement thus far indicates how successful his company's policies are.
"States permit pipeline [companies] to use eminent domain to obtain easements to build their pipelines," Cunha told SolveClimate News. "If we cannot reach a reasonable agreement with a landowner when a project is in the public good, then the eminent domain process ensures that the pipeline can be built ... and that landowners are appropriately compensated for any loss in value to their land."
TransCanada pays full market value for any easement and does not assume ownership rights to the land, Cunha stressed, adding that the landowner maintains economic rights and use of the land.
"A project like a pipeline that provides oil to American consumers and refiners provides a public benefit," Cunha said about the justification for pursuing eminent domain as a last resort.
Traction for Lawsuits?
Doug Hayes, a project attorney with the in Boulder, Colo., has been tracking the Keystone XL saga since its inception.
Although it's likely a long shot for landowners to win condemnation cases by claiming that a pipeline pumping oil from tar sands exclusively is not benefiting their states, but Hayes said he thinks "it's a pretty good argument."
His conjecture is that if a court ruling that TransCanada couldn't use eminent domain to condemn land were based on state statute, the Canadian behemoth would use its clout to change that measure. However, he added that TransCanada's powers might be more limited if the ruling is based on a state's constitution because an amendment to such a document is more difficult to finagle.
"These court challenges are not a slam dunk by any means," Hayes said. "But I don't want to give the impression that landowners are wasting their time and that they are never going to win."
A court ruling halting TransCanada's use of eminent domain could force the company to change its route, he said. Or, if property owners put up enough of a stink, state and/or congressional legislators might be able to intervene to stop Keystone XL.
Tomorrow: Part II, "Defining Good Faith"