Keystone XL. The Devil's In the Details.

Greg Pollowitz over at NRO's Planet Gore blog has a few interesting observations on Keystone XL. First,

One thing lost in the entire Keystone XL debate is that we’re really not talking about an entirely new project. The “XL” portion is the proposed expansion of the original Keystone pipeline that is, much to the amazement of some I would gather, currently operating safely while transporting oil from Canada to the United States.

The left's arguments about potential damage to the Ogallala aquifer, etc., seem pretty muted when you consider this point. But don't get too excited quite yet because,

But jobs really aren’t the important issue. There’s an issue brewing that could derail the pipeline, and it’s an issue conservatives really should be taking a hard look at: eminent domain. (emphasis added)

Read the whole piece, as Greg has pulled together some good information on TransCanada's use of eminent domain to clear the way for its pipeline routes.

These seem to be the exact same kind of takings that Justice Thomas warned about in his Kelo dissent:

If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution ...

Pollowitz's piece points out the national security arguments in support of the pipeline that countervail fifth amendment concerns to some extent, but this seems too cute by half.

Is the theoretical national security benefit of Keystone XL a "public use" under the fifth amendment, or does this veer into Thomas' "public purpose" danger zone?

I come down where Greg does at the end of the day: If TransCanada wants to build the pipeline, they should do it without eminent domain.

posted by Andy at 12:17 PM

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