Property Rights

TransCanada Easement Proposals: Landowners Beware

When private property is acquired under threat of condemnation, it is not entirely about the dollars.

       TransCanada is at it again, attempting to acquire right-of-way for the XL Pipeline.

TransCanada has sent its negotiators out again to deliver easement proposals and related documents to property owners along the route approved by the Public Service Commission for the XL Pipeline through Nebraska.  This is the third time TransCanada has acquired easements for the proposed pipeline corridor.  Much of the first route was abandoned when TransCanada failed to obtain the necessary permit from the federal government.  That original route was through the Nebraska Sandhills, and environmental issues forced TransCanada to move the corridor further to the east in the northern part of Nebraska.  Of course, the landowners who had signed easements kept the money they had been paid by TransCanada.

Then, in 2012, after re-routing approximately one-half of the pipeline corridor in Nebraska, TransCanada acquired much of the right-of-way for the second corridor.  However, in 2017 that corridor was rejected by the Nebraska Public Service Commission in favor of a third route.  Once again, the property owners along the abandoned route kept the money they had been paid.

The new route as approved follows the route of the original Keystone Pipeline through much of the state.   Now, with the “approved” route still on appeal before the Nebraska Supreme Court with what must be recognized as serious questions regarding the validity of the Public Service Commission’s decision, TransCanada is attempting again to acquire easements without a final determination that it can legally use the route.

TransCanada is presenting property owners with easement documents that must be described as flawed in several respects, to the advantage of TransCanada.  TransCanada has been willing in the past to revise their documents to make them more fair to the property owners.

If you own property along the approved route, please remember that:

  1. The rights and responsibilities established by the easement document can sometimes be far more important than the dollars of compensation to be paid to the property owner. The dollars will soon be gone, but the easement is permanent.
  2. If the TransCanada negotiators threatened to file condemnation for failure to sign an easement within a particular time frame, usually 30 days, TransCanada does not have final route approval. In an eminent domain proceeding, TransCanada will be required to allege and prove that it has obtained all necessary approvals.
  3. If you have been told that your neighbors have all signed, do not automatically believe it.
  4. Do the smart thing: Read the documents very carefully and then call an experienced condemnation lawyer.