November 30th, 2010 — By — In News & Events

Can TransCanada’s Keystone Pipeline take private property by eminent domain?

Question: Can TransCanada’s Keystone Pipeline take private property in America by eminent domain?

Answer: Yes, corporate Canadian energy giant, TransCanada, can effectively take private property from American citizens using the power of eminent domain.

Utility providers such as natural gas, electric, telecommunications and water/sewer companies generally may be granted the power of eminent domain by the local, state or federal government for the purpose of constructing utility infrastructure that is considered a public purpose or having public benefit. The power of eminent domain may be bestowed upon such utility companies, whether considered private or public, by statute and often must be approved by government regulatory agencies, such as FERC in the case of pipelines and transmission projects. Because eminent domain laws and procedures vary from state to state, there may be a number of prerequisites required of companies seeking to use eminent domain for these projects.

TransCanada’s Keystone Pipeline and Kestone XL Pipeline projects have recently been the topic of considerable concern and debate because TransCanada is a private foreign company. However, as a foreign company doing business in the U.S. as a common carrier of utilities, TransCanada has and will most likely continue to be granted the power of eminent domain to acquire the necessary easements for the construction of the Keystone pipelines as well as other infrastructure projects throughout the United States as long as TransCanada obtains the required authorizations from all necessary federal and state agencies. Eminent domain attorney Anthony Della Pelle of New Jersey law firm McKirdy & Riskin, PA discusses how TransCanada obtains the power of eminent domain on Fox and Friends in the the link above. [Disclosure: Edward McKirdy of McKirdy & Riskin is the New Jersey member of the Owners’ Counsel of America.]

The TransCanada Keystone Pipeline stretches from Alberta, Canada through North Dakota, South Dakota, Nebraska, Kansas, Missouri and Illinois. The Keystone XL Pipeline has been designed as an extension of the Keystone Pipeline and will run from Canada through the Midwestern United States through Oklahoma and Texas ending at the Texas Gulf Coast.

TransCanada also has plans to construct high-voltage direct current (HVDC) transmission projects originating in Wyoming and Montana and extending to Nevada. The proposed Zephyr and Chinook Power Transmission Lines would transport wind-generated electricity to markets in the Southwest United States.

While the utility company may acquire the power to use eminent domain to take property for such projects, the US Constitution and state constitutions require that condemnors who acquire private property for a public purpose must pay the property owner just compensation for the taking. Negotiating and/or litigating to achieve just compensation is often a complex process and can be complicated by impacts of the project upon the property itself among other issues. Property owners facing the disruption of property rights, the quite enjoyment of private property and possibly the threat of eminent domain due to TransCanada’s proposed infrastructure projects or other pipeline or transmission line projects may wish to seek the counsel of an experienced eminent domain attorney to navigate the acquisition and valuation process. [Disclosure: A number of attorneys affiliated with the Owners’ Counsel of America have represented or currently represent private property owners in eminent domain proceedings against TransCanada in Nebraska, Missouri, Kansas, and Oklahoma.]

For more information on the Keystone Pipeline Projects see:

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