(If they are capable of being embarrassed...)
By Ernest A. Canning on 1/22/2015, 5:52pm PT  

Sean Hannity and his friends on the Republican right must be furious about the outrageous land grab happening to private American citizens in Nebraska. Wait, what? He's in favor of the Keystone XL pipeline project anyway? How could that be?

The pipeline's owner, TransCanada Corp., has now filed an eminent domain action in a Nebraska state court seeking to force private landowners to grant an easement that would permit the Canadian-owned company to erect sections of the highly controversial Keystone XL on privately owned land.

The new filing comes on the heels of a controversial decision earlier this month in which a 3-judge minority of the 7-judge Nebraska Supreme Court were permitted to overturn a lower court ruling that the process by which the state's Republican Governor Dave Heineman permitted TransCanada to revise the pipeline's route was unconstitutional. Heineman's decision was upheld because of a Cornhusker state requirement that state constitutionality be determined by a super-majority of high court's justices. (The new route was necessary after both the Republican Governor and GOP-controlled state legislature objected to the originally-planned route.)

While the Nebraska Supreme Court's decision at the time served to shift the immediate focus of the debate back to Washington D.C., where the Republican-controlled House voted for fast-track approval of the pipeline and a similar bill is quickly working its way through the newly GOP-controlled U.S. Senate, TransCanada's eminent domain filing in the state may prove a major embarrassment to those same elected Republicans. Many of those same GOPers, and their mouthpieces in the media like Hannity, have previously declared fierce opposition to eminent domain abuse that occurs when either state or local entities condemn properties owned by ordinary citizens, where such condemnations primarily benefit commercial interests of wealthy corporations and developers...

Questionable right even under Kelo

In a 5 to 4 decision in Kelo v City of New London (2005), the U.S. Supreme Court upheld the use of eminent domain by the economically depressed City of New London, CT to transfer property from private, middle-class homeowners to the pharmaceutical giant, Pfizer via a redevelopment agency. The Court ruled that Pfizer's promised jobs creation was a "public purpose" justifying the use of eminent domain.

However, the majority added:

The city would no doubt be forbidden from taking petitioner's land for the purpose of conferring a private benefit on a particular private party, nor would the city be allowed to take property under the mere pretext of a public purpose when its actual purpose was to bestow a private benefit.

The ephemeral nature of the "jobs" rationale was exposed when, eight years after the Supreme Court's decision in Kelo, Pfizer pulled up stakes, taking with it the 1,400 jobs it had created.

TransCanada would be hard pressed to establish that its pipeline would create a significant number of jobs that would justify the use of eminent domain to seize permanent easements from rural Nebraskans. As found by a Cornell University report, a completed Keystone XL pipeline will likely produce "as few as 50" permanent jobs, nationwide.

In its report at the beginning of last year, the U.S. State Department similarly found [PDF] that "The proposed Project would generate approximately 50 jobs during operations," a number which, late last year, was finally conceded by TransCanada CEO Russ Girling when he admitted to ABC News that the pipeline's "actual operating jobs are about 50."

Hannity must be furious!

Democrats and, especially, Republicans have a very recent public record of standing strongly in opposition to the usurpation of private land via the use of eminent domain.

Following the SCOTUS Kelo decision, Sean Hannity of Fox "News" ran a series of stories about "eminent domain abuse across the United States," excoriating the government for seizing the private property of U.S. citizens. "Is that the America we want to live in, where you take a person's home?," Hannity railed during one of his 2005 episodes. "Sounds like the Soviet Union!"

During the right-wing Cliven Bundy "scandal" last year, as Hannity pretended the scofflaw Nevada rancher was a victim of a government land grab, he lambasted the New York Times for ignoring the "real" issue at stake: "Its reporters don't have the time or the energy to stand with average Americans being victimized by eminent domain."

Hannity, however, has been a big supporter of the Keystone XL pipeline, describing opposition to the project recently as "just dumb."

But its not only right-wing commentators who are having trouble keeping track of their own professed principles. Elected Republican officials who support Keystone XL have also pretended to be furious about eminent domain in the years since Kelo. During an April 18, 2013 hearing on the Republican-sponsored, H.R. 1944, the Private Property Protection Act, Rep. Trent Franks (R-AZ), citing a 376 - 38 House vote in 2005, correctly observed that opposition to the Supreme Court's Kelo decision cuts across party lines --- a point reinforced by public opinion polls reflecting "that well over 80 percent of the public oppose Kelo."

However, there can be no question but that self-described "conservatives," claiming to champion the rights of small businesses and those of individual home and farm owners, have been on the leading edge of opposition to the use of eminent domain to transfer private property to corporations. Thus, in her Kelo dissent --- joined by Justices Thomas, Scalia and Chief Justice Rehnquist --- former Justice Sandra Day O'Connor decried the "reverse Robin Hood" nature of the Kelo land grab. "The beneficiaries," she observed, "are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

On July 22, 2006, George W. Bush responded to Kelo by issuing an executive order declaring:

It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

To be sure, this matter will be a test for those claiming "conservative" credentials. It's a test they appear to be prepared to fail miserably.

By assuming the populist mantle --- supporting the property rights of individuals, small businesses and family farms vs. corporate greed via their opposition to the Kelo decision --- self-proclaimed "conservative" Republicans painted themselves into a corner. They cannot maintain their professed populist principles while advancing the interests of, in the case of the Keystone XL pipeline, a foreign corporation seeking to use the power of eminent domain to seize private easements for private gain.

Not that consistency has ever been a hobgoblin of "conservative" minds.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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