With Eminent Domain Attack on Trump, Ted Cruz Walks Fine Line

Despite a recent ad bashing Donald Trump for employing eminent domain for a parking lot, Ted Cruz has backed the Keystone XL and other pipeline projects that would use the same controversial tool to displace landowners.  

During a stop at the Spindletop Museum in Beaumont, U.S. Sen. Ted Cruz pitched his energy policy bill, which he calls the American Energy Renaissance Act. During a stop at the Spindletop Museum in Beaumont, U.S. Sen. Ted Cruz pitched his energy policy bill, which he calls the American Energy Renaissance Act.

During a stop at the Spindletop Museum in Beaumont, U.S. Sen. Ted Cruz pitched his energy policy bill, which he calls the American Energy Renaissance Act. Justin Dehn

In the Republican race for the White House, U.S. Sen. Ted Cruz has recently discovered the issue of eminent domain — the seizing of private property for the public good or economic development — is fertile ground for attacking real estate mogul Donald Trump.

After all, Trump once invoked the tool when trying to oust an elderly widow from her property in Atlantic City, where he wanted to build a limousine parking lot for one of his casinos

Eminent domain is a "fancy term for politicians seizing private property to enrich the fat cats who bankroll them — like Trump,” a recent Cruz ad states.

To Julia Trigg Crawford, the attack sounded odd coming from Cruz, who didn’t speak out when TransCanada, a Canadian pipeline company, invoked eminent domain to build part of the Keystone XL pipeline through her 600-acre farm on the Texas side of the Red River. Instead, Cruz supported the company’s effort.

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“It certainly seems incongruous to me,” the northeast Texan said. “He is allowing a foreign corporation for a for-profit pipeline to take land from more American citizens against their will."

"The Quintessential Texas Battle"

Speaking in Lubbock in November, Cruz said, if elected, “we will approve pipelines across the country.” And he ripped Obama for rejecting the northern leg of the Keystone XL pipeline, calling the project’s approval “as close to a no-brainer as any decision you’ll find in politics,” saying it would add jobs to the economy and increase national energy security.

Cruz’s unwavering support for pipeline projects that rely on eminent domain suggests a disconnect between his view of a company using that tool for energy development and one using it for buildings or other structures. It also illustrates the tough terrain candidates walk when advocating for property rights — particularly in Texas, where they frequently clash with energy interests.

“This is the quintessential Texas battle,” said Matthew Festa, a land use expert at the South Texas College of Law. “Texas is a pro-property rights culture, but it is also a very pro-oil and gas culture. Those two things aren’t always reconcilable.”

About 426,000 miles of pipeline — about one-sixth of the nation’s network — crisscross Texas, carrying oil, gas and other hazardous liquids. It’s not rare for pipeline companies to invoke eminent domain to build them. 

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Historically, pipeline companies in Texas have had no trouble seizing land through eminent domain when negotiations fail. Until March 2015, they could simply mark a box on their application to the Texas Railroad Commission that says the pipeline will be a “common carrier” open to public use.

Now, companies must submit additional information supporting that status, but critics still question how closely regulators scrutinize such requests. Landowners must still go to court to fight eminent domain claims.

To build its Keystone XL pipeline, TransCanada, which filed a lawsuit against the Obama administration this month, would likely restart eminent domain proceedings for dozens of holdout landowners in multiple states along the 1,179-mile route.

“Eminent domain is a tool of last resort for TransCanada, but an important tool that allows for critical commodities to be carried to fuel the lives of North Americans,” TransCanada spokesman Mark Cooper said.

TransCanada already successfully condemned more than 100 tracts from holdout landowners in Texas, according to media reports, to build the Keystone XL’s southern leg, which began piping crude oil from Cushing, Oklahoma, to refineries on the Texas Gulf Coast in 2014. 

Crawford’s court battle against TransCanada was drawing major headlines throughout 2012, the same time Cruz was waging a successful run for U.S. Senate. But Cruz — whose presidential campaign did not respond to multiple requests for comment — did not stake out a position on the case or address concerns raised by other landowners.

Crawford said she wasn’t surprised at Cruz’s apparent inconsistency on property rights issues. Plenty of Republicans struggled to pick a side — property rights or energy development — during her legal fight, which ended in 2014 when the Texas Supreme Court refused to take up her appeal of a lower court decision siding with TransCanada.

Like most Republicans, Cruz would go on to blast President Obama’s rejection last year of another part of the Keystone XL, the Canada-to-Nebraska segment that roiled Washington for years.

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The campaign for Trump — who called eminent domain “wonderful” as recently as last October — did not respond to requests for comment for this story, but the New York billionaire has responded to Cruz’s recent property-rights-themed attack by calling eminent domain necessary and reminding voters that developers who practice it do give landowners some compensation.

“They’re saying I’m not a conservative because of eminent domain,” he said at a campaign event in Muscatine, Iowa, according to the Des Moines Register. “I’m not in love with eminent domain, but you need it, or you’re not going to have roads and you’re not going to have a country, OK? So I say the Keystone Pipeline could not be done — could not be done without eminent domain.”

(Perhaps aware of property-rights sensitivities in Iowa, which is dealing with a controversial pipeline proposal of its own, Trump also suggested that he could negotiate a deal with TransCanada so that the U.S. could share in the Canadian company’s profits.)

A Perry-backed pipeline

While Keystone XL has drawn the lion's share of attention from politicians, another controversial pipeline project under development by a pair of billionaires —Dallas oilman Kelcy Warren and Mexico’s Carlos Slim — would transport natural gas beneath 143 miles of largely untouched land outside of Big Bend National Park in West Texas into Mexico.

Supporters of the Trans-Pecos Pipeline argue that it could temporarily bring jobs to the area and help wean Northern Mexico off coal, the emissions of which sometimes waft into Texas.

But it has faced resistance from ranchers, environmentalists and other disgruntled landowners. Beyond concerns about marring pristine landscape and risking more wildfires in an area already prone to them, there’s this: Some folks just don’t want to give up their land, and they fear being forced to give it up through eminent domain.

“They figure they can just show up and condemn your land,” Tom Beard, an aggrieved Brewster County landowner, told the Tribune last July.

He was speaking of Warren's Energy Transfer Partners, which plans to start construction on the pipeline in the coming months.  

Asked if the company had condemned any private land, Vicki Granado, a spokeswoman, said she did not “have specific data” because the company was “focused on negotiating voluntary easement agreements.” 

Cruz hasn’t publicly weighed in on the Trans-Pecos Pipeline, but he recently gained a prominent backer involved in the project: Gov. Rick Perry, who joined Energy Transfer's board in February 2015.

Festa, the land use expert, said Cruz's position illustrated common perceptions about eminent domain.

“Everybody’s against it," he said, "unless they need to use it for something.”

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