There are some cases where, after reading the majority and dissenting opinions, you understand that the judges are on the same page but just have a differing view of the law. However, there are opinions where there seems to be a severe disconnect between the majority and dissent because they address different arguments and advance completely different “narratives” (to use the current parlance).
We don’t know if that’s what led the Texas Supreme Court to accept review of Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas LLC, No. 09-09-002-CV (Tex. Ct. App. Sep. 24, 2009) last week, since the issue as recounted by the court of appeals’ majority opinion dealt with the seemingly straightforward question of whether a carbon dioxide pipeline operator qualified as a common carrier because it completed the statutory steps, and consequently could exercise the power of eminent domain. The dissenting opinion disagreed, but not because of a different view of the majority’s statutory analysis, but because it did not take into account the constitutional prohibition against private takings, an issue the majority does not mention at all.
In Texas as in many other states, the government is not the only entity with the power of eminent domain. Under Texas law, a “common carrier” may institute condemnation and may take property “when necessary for the construction, maintentance, or operation of [a carbon dioxide or hydrogen] pipeline.” To obtain common carrier status, the pipeline owner must first accept the regulatory jurisdiction of the Texas Railroad Commission. See Tex. Nat. Res. Code § 111.002. Accepting Commission jurisdiction renders a carrier’s pipelines legally open for public transmission.
Texas Rice argued “Denbury Green’s pipeline is actually a private line as opposed to a pipeline to transport to or for the public for hire,” slip op. at 7, and pointed to the fact that the pipeline was not completed or operational, so there was “no evidence in the record regarding Denbury’s [sic] Green’s actual use of the pipeline.” Slip op. at 8. The majority held it didn’t matter, because even if there was evidence in the record of Denbury Green’s actual use, “when determining public use, the existence of the public’s right to use the pipeline controls over the extent to which that right is, or may be, exercised.” Id. It was not disputed that Denbury Green had complied with the statutory requirements, and the court concluded that acceptance of the Commission’s jurisdiction meant the pipeline was legally open for public use. With the facts rendered irrelevant, there was nothing left for the court of appeals to do except affirm the trial court’s grant of summary judgment in favor of the pipeline.
Whoa, hold on there Hoss, what about the “public use” requirement in the constitution? [Sidebar: while the dissenting justice didn’t actually say that, please bear with us; whenever something is written about a case from Hawaii we get “paradise” motifs, or in cases about beaches, cheeky metaphors about sand (“a line in the sand“), so we feel we can adopt a bit of literary license in Texas cases.] Instead of a straightforward statutory interpretation case, the dissenting justice saw it as a right-to-take issue on which there was a genuine dispute of fact. “Denbery’s description of the pipeline’s purpose indicates the CO2 it transports in the pipeline will be its own, whether purchased from man-made sources or supplied by its own Jackson Dome natural source. How then does Denbury Green have the power to take the private property of another to accomplish this purpose?” Dissent at 2-3. The dissenting justice (correctly) noted that the delegation of eminent domain power to common carriers in the Texas Natural Resource Code must be consistent with the Texas Constitution, so “is not applicable to pipelines used solely for private purposes.” Dissent at 3. Unlke the majority, the dissent did not find it dispositive that by submitting to Commission jurisdiction, the pipeline was open to the public, because “[t]he Constitution does not authorize the taking of private property for regulated private use.” Id.
Denbury argues further that it must now by law permit others to use its pipeline. Merely offering a transportation service for a profit does not distinguish a private use from a public use. Private carriers transport in particular instances for those they choose to contract with, and make individualized decisions whether and on what terms to transport. A common carrier is one involved in a quasi-public activity, and transportation is, in fact, available to all indifferently. Is the intent to make a pipeline running from a Denbury well to a Denbury well available for use by the “public for hire” reasonable? This summary judgment record is not entirely clear on that question.
Dissent at 4. The declaration by which Denbury submitted to Commission jurisdiction was not conclusive of the public use issue, because “we should not assume either the Legislature or the Railroad Commission intended to authorize an unconstitutional private taking. We should presume that a constitutional declaration was intended.” Dissent at 5.
Whose narrative will win out in the Texas Supreme Court? Stay tuned.