Ever since our country was founded, the ownership of private property has defined one of our many freedoms as Americans. As an owner, you can pretty much build anything that you can think of such as a house or a grocery store or even a bowling alley. The sky is the limit. But how would you feel if someone were to inform you that your land is going to be seized to make way for a public project? How would you feel if that very piece of property was where you lived and based your entire livelihood off of? For farmers in the Dakota’s and Native Americans, this was exactly how they felt when they were informed by TransCanada that they would soon have to make way for Keystone Pipeline. By using the power of eminent domain, TransCanada has slowly been able to obtain approval to seize these people’s land. While the use of eminent domain to make way for the reasonable seizure of a project like this is completely justified under the due process of law, it however is an unethical way of doing so because the farmers and Native Americans will receive nothing it return from the pipeline. Under these circumstances, the Keystone XL Pipeline should not be constructed because its implications are unethical and violate constitutional, farmer, and Native American property rights. 

Despite that fact that the pipeline provides a huge economic incentive, it however, fails to hold up against the legality of the 5th amendment and eminent domain. As stated in the 5th amendment of the United States Constitution, “No person shall be deprived of property, without due process of law” (Reed). Under this provision known as the taking clause, citizens are protected from unreasonable government seizure of private property (Schultz). While there have been many cases where the governments seizure of property has been reasonable, the seizure of farmers and Native Americans land to make way for the Keystone Pipeline is far from reasonable. Instead, the government has persistently cited to the Takings clause as justification, when in reality they only care about the potential economic benefits the pipeline would bring. This type of behavior is most commonly seen as eminent domain abuse, which occurs when a private party seizes one’s property for unnecessary and unreasonable reasons (Reed). Under eminent domain a party is a granted the seizure of land for public purposes, but when a party benefits privately from the property seized is where it crosses the line. The Keystone Pipeline clearly violates these terms as TransCanada and the US oil economy would be the only beneficiaries from the project. In cases such as this one, where the party is more concerned about it quest for profit and consumer benefits, the “deal-killing disqualifier of pretext,” is whipped out (Kleeger). When a party is accused of pretext, it is brought to the courts to be decided on. If the court is convinced the pretext is in fact afoot, they “will hold that private property is constitutionally protected and no private party or entity can unreservedly wield eminent domain to build a private pipeline” (Kleeger). Using that knowledge, if the court were to be convinced that there is evidence to suspect that pretext would occur with the Keystone Pipeline, then the farmers and Native Americans land would be protected from eminent domain. However, based on recent court rulings favoring the judiciary over citizens on eminent domain, accusing a project of this magnitude of pretext, is an extremely hard thing to do. 

So how does the Keystone Pipeline project hold up to these standards? As Kleeger notes, Keystone is viewed as “different in the sense that its product is vital to national security and has definite space limitations” (Kleeger). Compared to other products, crude oil has a vast amount of uses, such as cars, trains, and planes. While this distinction may separate the project from others, it should however be noted that the greater public, (aka the farmers and Native Americans), won’t receive any benefits if the pipeline were to be built. In reality the oil that would be transported, would be refined and then shipped off to foreign countries (Pierre Louis). In this situation, it is debatable on whether the pipeline truly benefits the public. Based on the most recent supreme court case involving eminent domain, Kelo v. City of New London, whichever party uses eminent domain must fulfill the public use requirement (Kleeger). Meaning that there has to be some type of public benefit. Given that, both the farmers and Native Americans wouldn’t receive any public benefits if the project were to be carried out. As a result, both the farmers and Native Americans would pocket nothing from the project. It is under this criteria in which, the private property of farmer’s and Native Americans should be constitutionally protected. 

The Keystone Pipeline’s implications are unethical towards Native American property rights because the project intends to build on tribal land without meeting any of the standards required by the tribes. Throughout history, America has gotten itself into a bad habit of trampling on the rights of Native Americans in the pursuit of economic gain. Ironically, such unethical behavior can still be seen today with the Keystone Pipeline route threatening to cross over Native land. The matter here revolves around the question of should anyone be allowed to build on federally recognized self-governing land? Even though the US federally acknowledges Indian tribes as sovereign nations, they still think that its economic needs have more of a priority over those of the Native Americans. Tara Houska, a Tribal Rights Attorney in Washington DC, describes this federal disregard for Native tribes as “a larger pattern of inattention” (Qtd. in Flanigan). The fact is that many tribal boundaries are being completely ignored and disrespected. In fact, TransCanada has failed to adequately consult tribal authorities about the project. For example, the Oglala Sioux, a tribe that whose land will be affected by the proposed pipeline route, requires by law that there be sufficient consultation in the case where a party seeks to build on their land (Flanigan). They require these consultations on projects for a number of different reasons: most importantly in this case on how the pipeline pertains to community safety. In good practice to these consultations, it is required under Section 106 of National Historic Preservation Act of 1966 that federal agencies consider the effects of their undertakings on historic properties (13). However, in the instance of the Keystone Pipeline, federal authorities failed to consider the effect the pipeline will have on Native American life. When the representatives of the Oglala Sioux met with the federal authorities, they came out of it feeling as if the meeting did not satisfy the requirements of the consultation (Flanagin). Regardless of this, Washington is seemingly uninterested in Keystone XL’s specific impact on Native reservations. What makes this even more frustrating for members of the Oglala Sioux for example, is that the people who are coming in to seize part of their land are non-Native, and don’t fully understand what it feels like for someone to invade on their territory. It’s one thing for one to put themselves in the shoes of another, but it’s another thing for one to totally disregard how the other party feels in the pursuit of one’s own interests. Time and time again the US has ignored Native American rights. With the Keystone Pipeline, the intentions are no different than before. At this point, the challenge to push back the approval of the pipeline is pretty much a lost cause. Recently 4 weeks ago, Nebraska regulators approved the proposed route for the pipeline in a 3-2 vote (Lou). And the fact that the project is backed by President Trump, only makes matters worse. As the project continues to remove every regulatory obstacle in its way, the future to repel it is becoming less and less. I can only hope that this neglect will soon stop.  

 As in the case of farmers, the Keystone Pipeline also carries unethical implications towards farmer’s property rights because the project intends to destroy a portion of private land without providing any benefits in return. With a project of this mass size, nothing beneficial is likely to happen in return. This includes destroying a portion of valuable farmland and putting one’s livelihood at risk if a pipeline rupture were to occur. For one farmer, John Harter, construction of the pipeline would result in “heavy equipment tearing through his land, cutting down trees and burrowing under the sand hills and pasture” (Mufson). The worst part about it is that the buried pipeline will be sitting in the water apart of the Ogallala aquifer, which will cause a spill or leak to spread because of the porous soil. If the project were to receive the green light for construction, a considerable portion of farmers across the country would see a section of their land get destroyed in order to lay the pipeline. That’s valuable land that they will never be able to get back. In response for the damages, TransCanada has offered to pay initial fees that cover the temporary damage and inconvenience. While this may be a good way to payback the farmers whose land would be ruined, TransCanada would essentially be paying once for the right to use the land forever (quoted in Pierre-Louis). Even if the company decided to stop using the pipeline, the landowners would be responsible for digging them up. In the end if you do the math, the amount of money TransCanada makes off every barrel of oil and the amount of carbon emissions being released is another reason why the company is in it for corporate greed. To be specific, it is estimated that for every four barrels of tar sands being produced, the equivalent of a fifth barrel is released in carbon emissions (Pierre-Louis). And, the price per barrel of oil trending upwards of $100. For another Nebraska farmer Jim Carlson, it was knowing this information that led him to turn down a little more than $300,000 rather than allowing Keystone XL to come through his land (Pierre-Louis). The same has gone for many other farmers who realize that their land is worth more than what TransCanada has to offer. In the end, building a pipeline straight through farmer’s land doesn’t just take up space in their field, but instead putts their entire livelihood at risk. If the pipeline were to rupture at any point, the damages would be catastrophic. Just based on reported statistics from TransCanada the odds of the pipeline significantly leaking somewhere could occur at least once every five years. Regardless if those odds are an improvement on previous ones, they are unfavorable and not worth the risk to farmers. The crude oil would permanently damage the soil and would put them permanently out of business. Clearly the risks of this project outweigh the benefits, and it would be much better if America’s precious farmland wasn’t put in danger. 

Some people argue however, that the Keystone Pipelines’ implications are totally ethical towards farmer and Native American property rights because the pipeline poses minimal risks towards both groups, and TransCanada’s use of eminent domain and easements in completely justified and fair. For starters, gas pipelines are the safest and most effective way to transport oil and natural gas. They are the way of the future due to their ability to transport oil faster and safer, while at the same time producing the smallest amount of carbon emissions comparative to any other transportation method. In fact, when the Department of State reviewed the project, they determined that “Keystone XL poses minimal environmental risk to soil, wetlands, water resources, vegetation, fish, and wildlife” (Loris). Also worth noting is that, the State Department’s final environmental impact statement concluded that “the difference in the greenhouse gas emissions (that the pipeline would produce) is miniscule” (Loris). That alone, as Loris thinks, would justify that the projects implications are completely ethical because the pipeline would put both farmers and Native Americans at minimal risk of their land being permanently altered. In the case of Native Americans, the heavily relied upon Ogallala Aquifer used by the Oglala Sioux tribe would be minimally impacted by the proposed pipeline route. What’s even more ironic about this as Nicolas Loris notes, is that “thousands of miles of pipeline already cross the aquifer” (Loris). For Loris, to make the claim that the pipeline would potentially damage the relied upon aquifer is preposterous. In terms of the legality aspect, pipeline advocates argue that TransCanada’s legal practices of eminent domain and easements are fair and perfectly justified. The first thing they point to is the fact that TransCanada is paying the fair market value cost of the portion of land that they seek build on. Advocates also note that in some cases, TransCanada is actually paying more than the amount to cover for damages and property. For example, Marshall Treadwell, a Texas farmer, ended up making the company pay an extra $8000 dollars due to the fact that he would be losing his investment of pine trees that would have to be cleared to make way for the pipeline (Mufson). Clearly the company has been willing to negotiate on the landowner’s terms. Secondly, pipeline advocates argue that the way Trans Canada has carried out its use of eminent is constitutionally justified. According to Alberta Province Premier Rachel Notley, the pipeline “will mean greater energy security for North Americans” (Qtd. In Lou). With this, the pipeline would be publically benefitting everyone in America because the pipeline would more energy for the US. The problem with all of this however, is that both farmers and Native Americans would still have their private land seized and destroyed for something that they didn’t authorize in the first place. 

When you think about you think about what it means to misinterpret something, we take it as a misunderstanding, a lack of comprehension, or a lack in information needed. With eminent domain, one must be guaranteed a reasonable seizure of their land. That is one must receive something of equal value or importance in return in order for the transaction to be completely justified. However, often times a lack of understanding is usually due to one’s incompetence. In the case of the Keystone Pipeline, TransCanada’s handling eminent domain and property rights towards farmers and Native Americans shows that they lack the understanding of how to properly apply it. That alone should serve as a disqualifier as to why the project should not see future construction. Nevertheless, this type of incompetence however doesn’t seem to matter in the eyes of the US government, who sees it as way to bolster the economy. I hope that more people can be informed about the wrongdoings that TransCanada is committing, so that they too can take a stand against the pipeline. 
