Many Texans may remember me, the former mayor of the small town of DISH in the Barnett Shale, for bringing attention to the health and environmental impacts of fracking a few years ago.
But those concerns weren’t the only menace that DISH residents faced when I was mayor. As natural gas companies laid miles of pipeline throughout town, the threat of eminent domain loomed large.
Maybe I was naïve, but as mayor I was shocked to learn that private, for-profit companies could so easily acquire land through eminent domain, especially in a supposedly pro-property-rights state like Texas.
It seemed un-American to me to see private property transferred from one private entity to another merely to benefit shareholders, not the general public. One DISH resident, for instance, had three large pipeline easements taken across his property, destroying any future land use.
In Texas, “common carrier” pipeline companies have the power of eminent domain, as per the state’s Natural Resources Code. A “common carrier” must provide services to the public for hire, meaning it must make its services available to the general public and not just transport the product (oil, natural gas, etc.) for itself.
However, there are no checks and balances in place to ensure that these companies are actually doing that. Although the Railroad Commission of Texas has finally taken some action to close loopholes in what constitutes a “common carrier,” this will do little to protect private property rights of Texans.
I soon found that it seemed like everyone in Texas who could afford a lobbyist had managed to claim eminent domain. In some cases, if they couldn’t get the land outright, a government entity would take the land through eminent domain and then give it the private entity that wanted it. In a high-profile case in the 1990s, the city of Hurst took 127 homes to expand a shopping mall, and the city of Arlington just used the power a few years ago for the new Cowboys stadium.
Government action like this may seem unconstitutional, but is it?
The U.S. Supreme Court ruled in 2005 in Kelo v. City of New London, Conn., that economic development was a legitimate “public use.” Significant backlash followed the court’s decision, and since then, most states have taken some sort of action.
But only a few did anything meaningful. Texas’ dog and pony show resulted in a 2009 constitutional amendment that inhibited the government’s ability to take property and transfer it to private entities in most cases, but it did nothing to deter the many private entities that have the power of eminent domain in Texas from abusing it.
It’s disturbing that many property rights advocacy groups rank Texas in the lower half of the United States for its protection of private property rights. It’s gotten to the point where you can own and peacefully enjoy your property as long as someone with more money doesn't want it.
It’s time for the Legislature to take action on real eminent domain reform. Lawmakers should look to states like Florida, which receives high marks from national property rights groups. In that state, the condemning authority is required to pay the legal fees of the victims — a policy that helps prevent eminent domain abuse.
Whatever happens, one thing is clear: Texans deserve better than what the Legislature has given us.