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Holt County Attorney Letter To The Editor

Brent M. KellyJan 15, 2021 Updated Jan 15, 2022 (0)

Holt County Attorney Brent Kelly has sent the paper a letter to the public about TC formerly Transcanda Corporation.

As many of you are aware, TC Energy (formerly TransCanada Corporation), is renewing its efforts to build a tarsands oil pipeline through the United States, including here in Holt County. The project is massive in scope and size, and will have a massive impact socially, culturally, environmentally, and economically. Whether the impact in each of those categories is positive or negative is the subject of heated debate. That debate is not the subject of this letter, and I am certainly not in a position to tell you how you should feel about the pipeline project or TC Energy.

The purpose of this letter is to explain some of the issues that the residents of Holt County and the public officials they elected will face.

The first issue is the issue of what is known as a “road haul agreement.” TC Energy's project will require the heavy use of roads that Holt County and its various townships are responsible for maintaining. In some cases, the roads will be modified, in some cases they will need to be repaired, and in some cases they will be bored under and closed temporarily. The “road haul agreement” would define the rights and responsibilities as between Holt County and TC Energy with regard to the damage and modification of the county roads. How do we calculate and assess those costs?

The second issue is the issue of zoning. Holt County has zoning regulations and a zoning board to deal with this issue. Holt County's current zoning regulations are minimal as they relate to pipelines.

The current zoning regulations require TC Energy to have a permit granted by the board prior to construction. Prior to obtaining that permit, TC Energy is required to fulfill several requirements, including an application. Has TC Energy complied with the zoning regulations? Should TC Energy's application be approved? What happens in the event the application is denied?

Concurrent with the first two issues is the issue of condemnation. In order to construct the pipeline, TC Energy will need to hold a legal interest in all of the various private and public property the pipeline proposes to cross. This legal interest is known as a perpetual easement. If obtained by TC Energy, the company will have the legal right to enter onto the property to construct, maintain, and inspect the pipeline forever. Some property owners have consented to the perpetual easement.

People are generally free to enter into contracts as they see fit, and these voluntary perpetual easements likely do not create much of an issue.

The issue that is likely to cause some difficulty is one that arises when an owner of private property does not voluntarily consent to TC Energy's taking and use of that private property in perpetuity.

The forced taking of that private property is accomplished through condemnation proceedings.

These condemnation proceedings give rise to several questions. Does the taking of private property for the benefit of a business, and not for the use or benefit of the public at large, comport with the Constitution of the State of Nebraska? What about the United States Constitution? If the taking is constitutional, what is a fair price for taking something from someone who does not wish to sell it?

What is the value of not being able to use your land the way you want, ever again?

There are also several issues that are certain to arise, but that cannot be accurately predicted. In my office, we know that the construction of the windfarm was accompanied by an increase in crime.

There was at least one nearly fatal vehicle accident related to the windfarm project. If the pipeline project comes through Holt County, what effect will it have on public safety? How do we mitigate this risk? What is the probability of widespread protests, such as those seen at Standing Rock? It's widely reported that the pipeline and the accompanying protests cost Morton County, North Dakota, $40 million dollars. How would Holt County approach that issue? What portion of any such expenses should be paid by TC Energy?

Now you can see some of the questions and issues that I, along with your other elected officials are facing. Much like the public debate surrounding this project, the elected officials don't always agree on the aforementioned issues or how we can solve them. Tensions are mounting and are sure to continue. TC Energy has assets totaling over $98 billion. In many ways, TC Energy's interests will necessarily be adverse to the interests of Holt County and its residents. An adversary with a $98 billion war chest is surely a worthy adversary.

I thank you for your continued support and understanding as we attempt to solve these problems and protect the legal rights of Holt County and its residents, as well as those of TC Energy.


Brent M. Kelly

Holt County Attorney


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