Opponents of the line — including Harter’s lawyer Matt McGovern, a candidate for South Dakota’s public utilities commission — argue that TransCanada is a private firm seeking access for Canadian oil sands crude to Texas refineries along the Gulf of Mexico. If prices are better abroad, those refineries will ship the oil products overseas, they say, possibly raising gasoline prices in the central part of the United States.
Harter does not see how this will help him in South Dakota. “This is a pipeline of greed, not need,” he said.
He is weighing an offer from a wind-farm developer, who would pay an initial fee and annual royalties. TransCanada pays an initial fee that covers only temporary damage and inconvenience. Harter thinks three turbines would have less impact on his land, but he isn’t sure.
“There will always be a few vocal opponents,” said Russ Girling, TransCanada’s chief executive. “As a last resort we have the right of eminent domain, but we hardly ever use it. In 60,000 [landowners], you’re going to find a few who don’t like us.”
“The claim that we have a right to expropriate property is not correct,” Girling said. “The landowners own their property. We pay them for inconvenience. . . . Eighteen months after we’re gone on farmland, you won’t know the pipeline is there.”
David Domina, an Omaha lawyer, said if the State Department and President Obama approve the pipeline, then landowners will not have much of a case. Even without that okay, TransCanada has qualified for eminent domain under state laws by winning approval from state utility commissions, according to experts in pipeline law.
But Domina says TransCanada’s easement terms are onerous and he has signed up more than 100 ranchers and farmers in Nebraska to negotiate collectively. TransCanada’s initial terms offer modest payments to cover any risk of leaks, rupture or interruptions of service as well as damage to crops, Domina said.
“I don’t know what it is they claim they still have liability for, but it wouldn’t be much,” Domina said. Landowners, by contrast, would be liable for any damage done to the pipeline, willful or not.
Recently, TransCanada has sweetened offers to landowners, especially those along the new Nebraska route, to try to ease access problems.
But Harter says the mere threat of eminent domain has persuaded many landowners to come to terms with the company without going to court — or running up legal fees.
“Negotiating with TransCanada having right of eminent domain is like having somebody trying to rob you at gunpoint and arguing for your billfold when there’s nothing in it,” Harter said. When a company representative threatened to use eminent domain, he recalled, “I said, ‘I will not be bullied into signing.’ ”