The Keystone Pipeline is a major hot topic in politics these days. I feel obliged to bring up some concerns about the language of HR 3, The Northern Route Approval Act, which the House of Representatives passed to clear the way for laying the pipeline. Justin Amash, Representative from the 3rd District in Michigan, first alerted us to the problems with this bill. It is a short bill; the language is clear and concise so it isn’t difficult to understand. The problem is simply this: the bill grants federal permit exemptions not available to anyone else, extends the government privilege of eminent domain, and denies the people and the States their right of due process all in favor of a single private foreign corporation, the TransCanada Keystone XL Pipeline, L.P. Here are the particular areas of concern:
In section 3, titled KEYSTONE XL PERMIT APPROVAL, the bill singles out TransCanada Keystone XL Pipeline, L.P. and gives them exemptions from obtaining certain permits required by the Department of State; yet all other corporations in the same situation are required to comply with permitting. Equal treatment under the law?
Section 5 of HR 3 also exempts this private foreign corporation from obtaining the necessary permits required by the Endangered Species Act of 1973. The law claims that “environmental reviews performed for the Keystone XL pipeline project” satisfies the requirements of the Endangered Species Act. If that is so, then why does Congress have to “exempt” this private foreign corporation from the permitting process? Subsection (b) of section 5 declares that any violation of the section of the Endangered Species Act “incidental to the construction or operation” by this private foreign corporation is okay and “shall not” actually be considered a violation. So, they have complied; and if they are ever out of compliance, then they are still in compliance… What???
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Section 6 gives this Canadian corporation even more force of law. In HR 3, the House of Representatives directs the Secretary of the Interior to, automatically without question, grant this private corporation “right-of-way” and “temporary use permit” pursuant to section 28 of the Mineral Leasing Act and the Federal Land Policy Management Act of 1976. Legally speaking, that term “right-of-way” means this private corporation now has the permission of our government to have free easement over the property that is within the path of the pipeline–private property included. Right-of-way does not give the government, or in this case the private corporation, the ownership of the land–just the privilege or the right to use that private land for the purpose of the pipeline. The 5th Amendment’s eminent domain clause permits the government to take private land for “public use” granted proper due process and compensation are delivered. How can our House of Representatives now extend this privilege of government to a private corporation for their private use and private profit? Are we to believe that because this oil pipeline may (or may not) provide some jobs and economic improvement, that this is what our framers considered “public use” in the 5th Amendment? Not likely. Unfortunately, it would fall right into place with the Supreme Court’s erroneous definition of “public use” in the Kelo v. City of New London case. Regardless of the Supreme Court’s opinion, you can be guaranteed that the TransCanada Keystone XL Pipeline, L.P. will not be sharing their profit among the people of the United States, for their “public use.”
Section 7 of HR 3 grants more waivers to this private foreign corporation, allowing them to pursue this pipeline across “navigable waters” unencumbered by the same rules and regulations forced upon all other corporations, foreign and domestic. Section 7 requires the Secretary of the Army to issues all permits under section 404 of the Federal Water Pollution Control Act and section 10 of the Act of March 3, 1899 without question or scrutiny. As a matter of fact, if the Secretary of the Army refuses to issue these permits based upon non-compliance by this private foreign corporation, subsection (c) of section 7 declares that the permits will simply be “deemed issued” on day 91. Section 8, titled the “Migratory Bird Treaty Act Permit” is another section of waivers for permits granted to the TransCanada Keystone XL Pipeline, L.P.
Apparently, these federal regulations are so cumbersome to corporations that they will actively impede progress and economic development to the point that Congress has to, by law, grant exemptions to provide for American jobs and American economic growth. If these exemptions are economically good for the TransCanada Keystone XL Pipeline, L.P., why aren’t they good for ALL AMERICANS? Doesn’t this piece of legislation prove with the government’s own words that these regulatory agencies are strangling the American economy to death?
I have saved section 4 for last. Section 4 is, in my humble opinion, the most offensive of all the allowances granted by the House. Section 4 places all legal jurisdiction in the District of Columbia circuit court:
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“Except for review by the Supreme Court on writ of certiorari, the United States Court of Appeals for the District of Columbia Circuit shall have original and exclusive jurisdiction to determine…“
If there are any legal disputes with land use, land taking, construction, maintenance, permits issues or not issued, and any claim whatsoever against the TransCanada Keystone XL Pipeline, L.P., the complainant will not be able to seek a court of local jurisdiction and will not be permitted to have a jury built of peers. States will be prohibited by Congress from applying their own laws, and all complaints will be forced to seek relief in a “foreign” court–meaning a court that is outside the jurisdiction of the offense. Very simply, anyone with a legal complaint against this private corporation will be denied their right to a trial by jury of their peers as guaranteed by the 6th and 7th Amendments; and due process is denied.
James Madison wrote in 1792:
“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions…
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man whatever is his own…
That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties…
A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species…
If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights.”
HR 3 is a violation of multiple constitutional principles, granting quasi-government privilege and immunity to a private foreign corporation. What could possibly motivate our constitutionally- minded House of Representatives to grant a private foreign corporation such a free pass to take land, avoid regulations, and deny due process to the American people? Would James Madison find America to be a just government, or one that operates under an excess of power to the destruction of property rights?
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