Texas Court Holds That TransCanada Pipeline is a “Common Carrier” and Can Exercise Eminent Domain Power

June 13th, 2013

The InverseCondemnation Blog reports on what most expected–that in Texas, the TransCanada Pipeline would be deemed a common carrier, and with that designation, now have the power of eminent domain.

The property owners sought a writ of mandamus from the court of appeals, arguing that the power-to-take issue must be resolved before the erstwhile condemnor is put in possession. The appeals court agreed with the property owners that the trial court should not have postponed its ruling, but concluded that TransCanada had submitted uncontroverted evidence that the pipeline would be used by third parties to ship petroleum, and therefore TransCanada qualified as a “common carrier.”

The court distinguished a recent Texas Supreme Court caseinvolving the same property owners which held that a pipeline company’s mere assertion that it is a “common carrier” is not sufficient to meet its burden of proof. Unlike that case (which involved a different statutory provision), TransCanada did not merely assert it was a common carrier, it backed up that assertion with an affidavit, and the property owners did not submit contrary evidence. Thus, the trial court’s error in delaying resolution of the common carrier issue was harmless.

This was one of the last remaining legal hurdles in Texas to the construction of the 2,000+ mile pipeline form Alberta, Canada all the way to Port Arthur Texas.