A county court-at-law judge in Lamar County has ruled that the developer of the Keystone XL Canadian pipeline project may exercise eminent domain authority to condemn farmland in the East Texas county. The Texas Railroad Commission previously approved Keystone’s application for common carrier status, which confers the power of eminent domain. The landowner has indicated that she will appeal the judge’s ruling to state district court.
This case will be carefully watched because it may implicate the Texas Supreme Court’s recent decision in Denbury vs. Texas Rice Land Partners, which held that mere Railroad Commission certification of a CO2 pipeline as a common carrier does not automatically confer the power of eminent domain, and that the burden is on the condemnor to prove that the pipeline satisfies the “public use” requirement of the Texas Constitution. It is unclear just how broadly Denbury will be construed by lower courts, and this case could be the first trickle of what may become a flood of litigation related to pipeline projects. Given the ongoing controversy over eminent domain and confusion over the current state of the law, we can expect more landowners to take pipeline developers to court.