Bold Nebraska is on the air with a TV ad featuring Nebraska landowners and citizens concerned about the TransCanada pipeline and eminent domain threats. The ad asks both Fischer and Kerrey to choose landowners over a foreign pipeline company. Landowners Bruce Boettcher and Susan Luebbe know all about TransCanada’s bullying tactics that Deb Fischer’s eminent domain bill could have fixed to protect landowners.

Deb Fischer turned her back on landowners during the pipeline fight. Fischer’s position was so extreme–she thought it was fine to build the pipeline through the Sandhills.

Even Gov. Heineman disagreed with Fischer when he asked President Obama to deny the pipeline permit because the route was too risky.

Deb Fischer claims she strengthened eminent domain with a bill when she was a state senator. In fact, she had an opportunity to ensure landowners had the upper hand when facing eminent domain, and instead she did nothing to define the word pipeline and did nothing to provide guidance for a public process over eminent domain power.

Deb Fischer’s bill actually put into law that wind companies could not use eminent domain but oil pipeline companies could use eminent domain for private gain.

Because of Fischer’s lack of vision on that eminent domain law, any pipeline carrying oil, tarsands or even toxic waste could claim eminent domain using her bill as the legal standing. Today, it’s a Canadian company who many of us see as “friendly.” Tomorrow, under Fischer’s eminent domain bill, it could be China or Iraq.

Facts on the Fischer Eminent Domain Loophole

What was the eminent domain bill Fischer passed as a state senator?
Deb Fischer’s 2006 eminent domain bill left landowners vulnerable to the situations many are in now with TransCanada. We will not accept Deb Fischer’s spin of “Well, pipelines had eminent domain rights since the 1960s” as the response to our critical question, “Why didn’t you do anything to actually fix the very broken property rights in our state when you had the chance?”

In 2006, politicians fell all over themselves after the Supreme Court Kelo case to pretend they were standing up for property rights when in reality, many laws–including the one Deb Fischer introduced–still gave private pipelines eminent domain authority. Fischer did not define what a pipeline was, she did not put in criteria that pipelines must meet to ensure the energy is coming to our state and she did not put in a public process where citizens have input before a pipeline gets eminent domain. Nope, Deb Fischer did nothing and instead used the excuse, “That’s how it has always been done.”

How did Fischer’s eminent domain bill weaken property rights?
Fischer’s 2006 eminent bill (LB 924) weakened property rights by continuing to give oil pipelines direct ability to use eminent domain without any public process. Deb Fischer and other conservatives nationwide put forth eminent domain bills after the Kelo Supreme Court case, but her bill did nothing to protect landowners from oil pipeline companies’ threats.

Fischer’s bill was in response to Kelo v. City of New London, which expanded the use of eminent domain by holding private land could be taken for redevelopment purposes and be owned by a new private owner rather than by the government. So, many states passed bills like this that were designed to curb the ability of private entities taking other privately owned land. However, the word “pipeline” was snuck into Fischer’s bill and thus exempted. That’s why in Nebraska you can condemn land if it is to be used for a “pipeline.”

While it’s true that Fischer’s bill stopped public entities from turning around and giving land to a private entities, her bill also gave private oil pipelines the power of eminent domain by exempting them–or providing a loophole.

Fischer carefully crafted the law so private oil companies were exempt from law. Oil pipelines, because of her bill, can simply invoke eminent domain. Today it’s “friendly” Canada. What if a company from Iran came into our state? They too, because of her law, could seize Nebraskans land through eminent domain. Public entities like Natural Resource Districts must have public hearings before they exercise eminent domain. Wind companies, because of Fischer’s law, cannot use eminent domain for a private project. But oil pipelines can use eminent domain for private gain.

Wasn’t Deb Fischer the chair of the Transportation Committee and isn’t that committee supposed to be responsible for pipeline bills?
Fischer was chair of the Transportation Committee which has jurisdiction over pipeline and did nothing–did not introduce a bill to clarify eminent domain, did not introduce a bill to says Sandhills and Aquifer off limits to pipeline path, did not introduce a bill to provide an “oil spill liability and road damage” trust–to ensure our state or local small counties would not be left paying for pipeline spills.

What could have Fischer done to protect landowner property rights?
David Domina, a lawyer with deep experience on eminent domain and the TransCanada pipeline, wrote an extensive legal paper for all state senators giving them guidance on how they could protect property rights, land and water in regards to oil pipelines. A section of the legal memo is below.

“The Nebraska Legislature’s oil pipeline legislative authority is substantial; the Body is not obligated to delegate sovereign powers, including eminent domain, to a private company.

The power of eminent domain could be withdrawn from pipelines, or oil pipelines, by the Legislature. Instead of the current grant of this power, the Legislature could reasonably constrain the eminent domain authority to oil pipelines so it could be used only where takings are to occur in locations, and on terms, consistent with the State’s reasonable siting criteria.

The Legislature could find that the Ogallala’s Aquifer’s value to the State and nation are transcendent, and that water which, as the Nebraska Constitution recognizes, is a natural want, requires oil pipelines be placed in locations where they do not intersect the Aquifer, or where the intersection over the Aquifer is controlled.

Similarly, the power of eminent domain could be constrained to limit the geography in which oil pipelines built for interstate transmission, or primarily interstate transmission of oil, may be located. Existing corridors could be required to be used unless the pipeline company can demonstrate, by clear and convincing evidence, that it cannot use the existing pipeline for reasons associated with a need for compliance with the federal oil pipeline safety laws.

State law can require that pipeline companies build within defined corridors through the State, which corridors are defined on terms consistent with legislatively expressed state land use criteria.

State law can require that pipeline companies build in existing easements or rights-of-way held by the company proposing construction, or in alternative compatible rights of way.

The Legislature could withhold the power of eminent domain from an oil pipeline company seeking a route solely because its proposed site for an interstate oil transmission line is economically beneficial to the company, or it would simply be cheaper to route the line across a convenient route, rather than build it across one consistent with Nebraska’s land use policy.

These general approaches to effectively constraining the use of eminent domain, or otherwise regulating oil pipeline siting, are consistent with the State’s manifest interest in regulating its land use and do not burden interstate commerce. They permit an interstate oil pipeline company to build a pipeline, indeed several, across Nebraska, but they prevent the pipeline from crossing the State in multiple locations at diverse points, instead of reasonably consolidating pipeline construction into a localized corridor.

State Legislatures have some, but not absolute, authority to delegate legal power to private companies. This includes the power to delegate the sovereign power of eminent domain. One common instance of delegation involves common carriers. A common carrier is a business that transports people or services to the general public under a license or authority provided by a regulatory body. The common carrier approach means that the private service provider is subject to special duties to ensure fair terms of access and reasonable rates. Whether a pipeline is a common carrier of a State may depend on State law and case law.”

Press Contacts:
Brian Jorde, Domina Law, 402-493-4100
Ken Winston, Nebraska Sierra Club, 402-212-3737 (Ken contrbuted to the content in this post)
Jane Kleeb, Bold Nebraska, 402-705-3622
Susan Luebbe, Landowner, 402-340-5155
Bruce Boettcher Landowner, 402-340-9080