Right-to-Know Provisions Need to be Added to Common Carrier Bills Heard in Texas Senate State Affairs Monday

Two bills were laid out in the Senate State Affairs Committee on Monday – SB 1625 by Senator Davis (D-Fort Worth) and SB 1637 by Senator Duncan (R-Lubbock).  Senator Duncan summed up the issues before the committee. He said the key issues include: who gets notice and how; whether hearings are to be held by the Railroad Commission- the State Office of Administrative Hearings; which courts review the decisions on common carrier status- the local courts or ones in Austin; what are the standards used to determine if someone is a common carrier and can the Railroad Commissioner adopt rules to fix the problems without legislation.

Julia Trigg Crawford, a Paris area landowner whose land was condemned and taken by the Keystone XL pipeline, which declared itself a common carrier, and was given the right through an eminent domain decision.  The Texas Supreme Court has ruled that in order for a pipeline company to take land, they must prove they really are common carriers, but to date Keystone XL has not proven they will carry anybody else’s product. Crawford’s land is threatened with imminent trenching for the Keystone XL pipeline even though she has appealed the court’s decision that Keystone XL is a common carrier and has the right to take her land.

Texas law ought to protect landowners from Big Oil, but today in Texas the Railroad Commission rubber stamps common carrier permits.  As a result, I am days away from having my land destroyed by the Keystone pipeline and poisons being pumped through my pasture,” said Crawford.

What’s upsetting to those of us who live along the path of these tar sands pipelines — no matter if they are new pipelines like Keystone or repurposed lines like the 35-year old Seaway and the 65-year old Pegasus — is that no one knows just how toxic these tar sands are and there isn’t a safety plan in place for residents or first responders should there be a spill,” noted Crawford. “Many of the toxic substances in these products are deemed ‘proprietary’ and therefore first responders haven’t had and won’t have the complete information they need to address an incident when a spill occurs unless the legislature acts. Saving the health of my community and my water is more important than a private company’s worries about the “proprietary” information of their product. This puts Texans and those who are here to protect us at risk.

There have already been three spills in residential areas: one along the Kalamazoo River in Michigan about three years ago, one in Arkansas last month, and a small leak in Ripley County, Missouri less than a week ago, a month after the same pipeline spewed thousands of barrels of crude in Arkansas. Almost three years and $850 million later, the Enbridge tar sands spill in Michigan is still not cleaned up. Witnesses told elected officials today that they should have the right to know what is in these pipelines before they are declared common carriers, are given the right to condemn Texans’ land, and travel through Texas backyards and water sources

Tar sands are far more toxic than conventional crude, and as a result of the recent Pegasus spill in Arkansas we now have a recipe for disaster with several tar sands pipelines threatening communities throughout Texas.  Tar sands crude contains a toxic mixture of more than 30 chemicals that can cause cancer, brain damage, and even death.  When tar sands crude hits water, it doesn’t behave like conventional crude.  The benzene and hydrogen sulfide go airborne necessitating the evacuations of nearby citizens due to possible exposure to dangerous neurotoxins, meanwhile the heavier bitumen in the tar sands crude sinks like a stone and essentially paves the river bottom, comment Rita Beving, a consultant to the 391 Commissions that have formed in several East Texas communities to either oppose the pipelines or to get additional information about the pipelines.

In Texas, the 65-year old Pegasus pipeline runs from Dekalb to Corsicana and then turns southeast to Nederland carrying tar sands crude.  The 36-year old Seaway line comes into Texas at Grayson County passing through the east side of Dallas and onto Freeport.  Seaway is now being surveyed to twin the existing line to double its capacity to carry tar sands for upgrading and refinement on the coast.  Finally, the new Keystone line is being trenched, entering near Paris in North Texas and coursing through the state to refineries in the Port Arthur/Houston area.

Public Citizen is proposing a few suggested amendments that would make for a far better bills.

  • Right to Know: Landowners and citizens have a right to know what is being carried in the pipelines going through their communities, farms, ranches and school yards.  We like Senator Davis’ language on this subject pg 5 section 111. 0122 9 (a) (3)   This provision should be expanded to include the chemicals used to dilute the materials such as tar sands in the pipeline and to refer citizens  to a website containing more information about the toxicity of the  substances.
  • Notice: Landowners should have the right to actual mailed notice about the decisions being made on common carrier status so they can decide whether to contest the decision in a timely manner. We prefer Senator Duncan’s language but think it should be expanded to include neighbors and others who might be affected if a spill were to occur
  • Hearings: Protestants have the right to a fair hearing in front of an impartial judge.  Time and again we hear from local landowners that the local district court judges, while sympathetic to their plight, tell them that they don’t believe they have jurisdiction, and these same landowners hear the same thing from the Railroad Commission   We prefer Senator Davis’ provision that requires the use of the State Office of Administrative Hearings. They will be far more mindful of landowners’ rights and more impartial than the Railroad Commission who sees part of its mission to be promotion of the oil and gas industry, but regardless Texans need to have a clear path to follow to address these issues.  We do have concerns about the 30 day time frame and would urge the bill to be modified to allow hearings in a SOAH regional office
  • Test for Common Carrier status: It is important that common carriers are really serving the common interest. Thus assuring that the common is not so affiliated with one company that they are not just a private pipeline is key. We prefer Senator Davis’ language.

Things to watch out for:

Conclusive Determination:  One of the divisive issues in the House debate has been over whether the Railroad Commission’s decision on the issue of whether a RRC decision on common carrier status is a conclusive determination for the purposes of a judicial proceeding.  What this section means is that a landowner or other affected party can’t challenge the common carrier status in a later court even if they never really got notice.  Farmers, ranchers and environmental groups have all expressed their concern about this provision as have Tea Party and liberal groups.  This is a major issue in the Julia Trigg Crawford appeal and in several other appeals as well. The committee’s decisions on the issue of who gets notice, how they get it and what kind of information about the contents will determine a lot about how contentious this debate will be.

Confidentiality: Senator Davis’ bill provides in two sections that the information about the common carrier application and the substances in the pipeline are confidential if specifically identified as such by the company. The presumption should be one of openness unless the company can prove that real harm will result from disclosure that outweighs the public right to know. We can see company after company claiming that their tariffs and customers are confidential and that the substances and the toxins used to dilute the tar sands are confidential.

Think it couldn’t happen? Ask the people whose health and homes were ruined in Mayflower or Kalamazoo. Ask the first responders how long they had to wait to get information on what was in those leaking pipelines. In both cases information was withheld and declared “confidential”

Citizens have the right to know when an application has been filed, right to effective mailed notice, a right to know if the applicant really is a common carrier with real customers and real tariffs or just a private pipeline and what’s in the pipelines so they may decide how to react to an application.

Contact the members of the Senate State Affairs Committee and your senator and ask them to require disclosure of the chemicals flowing through the pipeline that will be flowing through Texas land, perhaps even your backyard, as part of the notification process and before eminent domain proceedings can begin.

Senate State Affairs Committee Members: Duncan (R-Lubbock) – Chair / Deuell (R-Greenville) – Vice Chair / Ellis (D-Houston) / Fraser (R-Horseshoe Bay) / Huffman (R-Houston) / Lucio (D-Brownsville) / Nichols (R-Jacksonville) / Van de Putte (D-San Antonio) / Williams (R-The Woodlands)