Q&A with BBCA legal advisor Jim Bradbury about the Trans-Pecos Pipeline and eminent domain
Below is a Q&A with BBCA legal advisor Jim Bradbury, conducted by Nicol Ragland of Wolfbird productions. Nicol is presently in production on the Trans-Pecos documentary.
Nicol: Can you tell us your main concern in the legal system in relationship to the Trans Pecos Pipeline as well as similar infrastructure projects?
Jim: We in Texas have become so enamored and accustomed to the various elements of infrastructure that come with progress that we have given up the necessary obligation of managing those projects and how they play out on a local level. The Trans Pecos project may well be one of the penultimate examples of this reckless vacuum. The familiar refrain that we “need pipelines, transmission lines and highways” is of course true. But that’s a hollow way of looking at the issue. What’s more important is having a legal and governmental structure that ensures such projects take place at the right place, at the right time for the right reasons. Those questions can only be answered through a robust governmental process that enables citizens, landowners and interest groups to have a meaningful role. With pipelines, that process is entirely absent. That’s what concerns me most about the daunting consequences faced by the people in the Trans Pecos region. This pipeline and the route, was apparently drawn in a room in Mexico City. No one really knows for sure. The project was awarded on a bidding system to a private company and now it’s all too real for a large group of landowners who spend their days and nights worrying, angry and talking to lawyers about how much they will be paid for something they never wanted to lose. And there never was any time, place or meeting where the State of Texas considered whether this project was needed, whether the route was appropriate under all factors and why the project was taking place. A project of this magnitude and impact should have been the subject of studies, meetings, hearings and a determination by the State. We do this for school board decisions, highways, transmission lines and almost everything we encounter. But by law, Texas pipelines are immune to such process. And that leaves communities and landowners with no place to participate and address their views. Every landowner that is confronted with eminent domain has to go through a very difficult process that cannot be well understood by someone that hasn’t. But here with the Trans Pecos that scenario is compounded. The people that live in the Trans Pecos have a deeply rooted connection with the land and vistas in that region. They are unlike any Texans in other portion of this diverse state, because they are bound by place, not by heritage, food, religion or language. And that single thing that binds them-place is being removed from them as a function of a meeting somewhere by a handful of people looking to make money. And that reality is hard to take.
Nicol: Can you tell us what you’ve learned from the Texas Senate hearing addressing eminent domain reform?
Jim: Eminent domain has been a growing source of tension in Texas for many years. Citizens have grown very vocal about the imbalance that exists under the law between landowners and entities taking property for infrastructure projects. The main focus of the hearing in the Texas Senate Committee on State Affairs was the inadequate compensation being afforded to landowners. The offers that are made to landowners are well below the values that landowners would consider a balanced transaction. Even one legislator commented that she had been through an eminent domain proceeding and left it wanting to chain herself to a tree that was to be lost. There is a tremendous concern over the state of eminent domain law in terms of its fairness to landowners and the leveraged process for taking property that it has become. Several legislators voiced the strong concern that many landowners have to the proposed high speed rail project between Dallas and Houston. That may well be the hottest political issue in Austin right now regarding eminent domain. I expect that when the Legislature begins in January that we will see multiple attempts to change and reform various aspects of the condemnation process.
Nicol: What is your opinion on the real value of the Boerschig case and his interest in taking this to the Supreme Court?
Jim: This case is very well drafted and obviously took significant time and effort to prepare. The arguments are novel but they have a great deal of truth in them. The suit raises the claim that the State of Texas has in essence handed the complete right to take private property to private pipeline companies without setting any real or meaningful standards. The state in essence gave the power away unchecked. And that I believe is a very powerful claim. Right now as I understand it the denial of the injunction is being appealed but the main case remains pending. If the suit proceeds to collect evidence on how this pipeline project came to be developed, who is involved and also the relative lack of role by the State of Texas, I think that it will pose a very significant issue for the federal judge hearing it. That is a question that very much needs an answer.
Nicol: How have you been witness to a group of citizens who have made a difference in legal reform?
Jim: I have seen this occur on numerous occasions. They key is whether the citizen groups can remain connected through the ups and downs and maintain a consistent and sustained message for change. Often in such efforts, there will be negative results early on and difficult days. But the ones who make it work through these times, keep their eye on the goal and continue to communicate to newspapers, interested citizens and policy makers. I saw this through the early days of fracking in the Barnett Shale. People were overwhelmed with the world around them changing so fast. But leaders emerged and they organized and began to set out what they wanted and how they went about it. And they began to see changes occur. Even on a small level, a group of citizens in central Texas concerned about the state leveling a set of ancient live oaks, they put countless hours into social media, news articles and letters and those trees are still there now. It can happen. But it takes a crafted set of messages and a commitment to stick with the goal for change even if it does not benefit you, but helps another group in the future.
Jim Bradbury is an environmental attorney serving as a strategic legal advisor to BBCA in order to preserve the pristine landscape of the Big Bend region and the unique people that live within it.’ http://bluewindpartners.com/