do you know whether the state of nebraska has given them that authority to make that claim? >> i think that it's a process. >> no. do you know whether the state -- >> may i answer the question instead of our counsel? >> this is a legal question. so she doesn't have the answer, then i'd be happy to yield you to. >> mr. chairman, my time expired. i seek unanimous consent to let mr. terry respond since he's an attorney from nebraska. >> i object. >> the gentleman's time has expired. are there other members who wish to speak? >> the gentleman from texas mr. gonzalez. >> let me ask counsel a question. does even -- doesn't the concept of eminent domain contemplate a taking, an appropriation?

>> yes. >> i mean that's the whole basis of eminent domain. there is a governmental purpose or interest that trumps the private property rights of a citizen. >> there's a balance within those compensation but that is a component. >> we can get into compensation forever on that. but it is still a taking. so if you have a pipeline deep in the ground, it is still considered a taking, right? of a private property owner's land. and i just want to make sure that we're -- we know what we're dealing with. secondly, doesn't the power of eminent domain belong to a governmental entity but it can be assigned to the private sector. is that what mr. waxman's question goes to, and that is, has nebraska told transcanada or whatever particular entity with the authority that the sovereign would have? >> the state's authority for eminent domain would be given to it by the constituents of that state. and then it is the states to then delegate it or give it as appropriate that authority that

it has. >> but who be making the determination on whether to appropriate someone's property, whether it's beneath the ground or above the ground? it still would be a private enterprise, would it not? >> i actually think that -- i'm not well versed on the specifics of nebraska law. but i think it goes through a process if there was a particular area or right of way that the pipeline operator was looking to exercise authorities related to imminent domain, there is a process involved with that. >> and do you know if that process has been completed in nebraska in order for transcanada to be making the representations to mr. thompson, the property owner? and i will yield to mr. terry because he may know the answer to this. >> it's in state statute. the process is already spelled in and out state statute. so whoever follows the -- >> reclaiming my time. i know that it is spelled out just like in texas. has it been exercised and has it

been granted? >> it doesn't need to be granted because it already exists in state law. whether they have used that or not, i haven't heard of an instance in nebraska where they have gone to court or used it. they've been able to negotiate. >> let me ask you mr. terry does that mean at this point in time, transcanada has the opportunity to go through the process, has not gone through the process, but is making a representation to mr. thompson that the property owner that they will in essence appropriate his property even though it's below ground level? >> you know, i'm not going to put myself in the minds of transcanada. all i know is there is a state's process spelled out in statute in which they could. now mr. thompson's property is going to be -- is now irrelevant in this process because there's

been an agreement with the state of nebraska to move that pipeline. so that route through his family's property is going to be rerouted. this is why the statute is important and the memorandum of understanding so that they can actually pick a new site and start negotiating with those land owners. >> and reclaiming my time. look, i support the pipeline. i just want it done properly. i don't want to circumvent what we have in existing regulatory scheme with the proper agencies, with the expertise and i surely don't want to circumvent what we have always been established as policy in this country whether it comes to anything that crosses our borders from another country whether it be mexico or canada. that's all i'm asking. but i think when we're dealing with the legal concepts, we have to be very, very honest about what we're doing and who we're empowering and making sure that it is orderly, fair, and just to the property owner.

we're having reports right now of some heavy handedness. i don't know if that's true or not. but let's set the stage for these negotiations as the pipeline goes forward. and i'm happy to yield to any of my democratic colleagues. >> would the gentleman yield? i think this goes to the heart of the matter. mr. terry's -- and mr. terry's answers to the questions from the gentleman from texas mr. gonzalez, he indicated that mr. thompson's property is not even under consideration anymore. well, the fact is that there is not a route that exists. so here we are giving approval to allow keystone xl pipeline to be constructed without nebraska

doing its basic due diligence and giving us a route. so this question will be revisited immediately after nebraska decides the route that it wants this pipeline to travel. so that's the essence of our problem here. >> the gentleman's time has expired. the gentleman from texas, mr. barton. >> mr. chairman, i just want to give congressman terry the opportunity to respond if he wishes to. >> i'm sorry. i was being briefed. >> i just want to give you the opportunity to respond to the prior question. >> sure. thanks to due diligence of great staff here. the specific statute of nebraska is 57101. and it does state specifically petroleum pipelines.

it's stated in the statute. and so there is a specific process that is spelled out, as i mentioned, through state statute. and those things -- those things are important. i have two points that i want to make to mr. rush's points. one is the reason why there's this kind of catch all is that if you have one land owner that, you know, has aligned themselves with the nrdc and then you have one land owner that can stop at 1,700 mile pipeline and i think that's really what the basis of this amendment is. but also what it does is it it makes nebraska law that's been vetted, has been adopted by the state legislature that the people are behind saying we're irrelevant or nonapplicable here.

and that's what this really does here. and so the other part of this is they are duly compensated. there is due process of law in this process. they have to be compensated at market prices. so all the rights done here. i want to come back and say that this is what you're doing is saying that we're going to block state law. we're going to nullify state law. and i just don't see why we want to go here and block state laws in the way that they have chosen to deal with these companies. so i will yield back to my friend. thank you. i would like to yield to the sub committee chairman. >> thank you, mr. barton. and eminent domain is also a contentious issue. the way these questions are

being asked on the other side, it leaves im transcanada is getting some special privileges. is there anything in the terry legislation that would give transcanada some special privilege relating to eminent dough pain in that any other pipeline in the country or any company willing to build another pipeline would not receive? is there any special privileges given to transcanada under this legislation? >> no. >> so it's being treated like any other pipeline company that wants to do this, is this correct? >> that's correct. >> would the gentleman yield? >> i would yield to the gentleman from georgia. >> i thank the gentleman for yielding and being a non-attorney member, i need to ask some legal questions. it does seem to me that the amendment from the gentleman from chicago, mr. rush, would essentially if it were successful change nebraska law

regarding eminent dough pain in. i will ask counsel her opinion on that. >> that is correct. currently under federal law there is no eminent domain for oil pipelines. what this would do is for as it applied to the state -- to any state, it would change their law. it would change their law if they had eminent dough pain in -- eminent domain authority. >> this has been brought up a couple of times in regard to eminent domain and this issue, taking and eminent dough pain in for public purposes and the usual way of thinking that is to build a school or a transportation corridor. in this situation, and this is my question of counsel, this taking under eminent dough pain in,

and i think mr. terry just addressed it briefly, fair market value, that's anybody's determination or they offer fair market value under the power of eminent domain granted to them by the state of nebraska. if the property owner is not satisfied with that fair market value, my question to counsel, they do have recourse in the superior court system or the state of nebraska and, of course, the appellate court system all the way to the supreme court in regard to the true market value if they are opposed to the taking of their property by eminent dough pain in. is that not true, counsel? >> that's correct. >> thank you. i yield back. >> will the gentleman yield? >> i'm happy to yield to mr. rush my last 13 seconds. >> would this whole amendment, isn't this in the essence of one you might call a special privileges? isn't this a special privilege

for one corporation to do whatever it wants to do to direct the administration within 30 days make a decision. if they don't make a decision, then this matter automatically approved. isn't that the essence of a special privilege? the whole thing here, i might add, is about the special privilege of one company, keystone, transcanada. special privileges of transcanada. if this is not about a sole corporation's special privilege in spite of the fears of american citizens, then i don't though what a special privilege is. i yield back.

>> the gentleman's time expired. the chair will recognize the gentleman from massachusetts, mr. mark for five minutes. >> thank you, mr. chairman. it's only to kind of point out that back in 2005 the supreme court brought down a case called kilo versus city of new london. and in that case, the supreme court upheld a local government's use of imminent domain to transfer land from one private owner to another to further economic development. now the majority's response was quick and furious. they publicly condemned the decision and brought a resolution to the floor expressing the grave disapproval of the house of representatives regarding the supreme court case. and every republican on this committee who was in congress then supported that resolution. so it's interesting to see that while the republicans believed that this was a critically

important federal issue, today they seem happy to allow a foreign corporation to exercise eminent domain. so just want to, you know, make it very clear that it's being noted on our side how this has changed as the circumstances have changed. i yield back the balance of my time. >> mr. chairman? >> the gentleman yields back. >> the gentleman from illinois. >> thank you, i'm glad to see my friend from massachusetts concerned about private property rights. it's good thing to do. if the staff will put up the slide on the screen. let's put this all in perspective. it's going to come up. come on. staff, don't let me down. okay. those are the pipelines in the united states currently. canada and united states, you

have a pipeline from edmonton to puget sound, edmonton to detroit, montreal to chicago, calgary to barstow, ft. nelson, goldbory to westbrook. this is in my district. just to point that out. quebec to new jersey. toronto to boston. toronto to new york. winnipeg tah winnipeg to detroit. edmonton to windsor. now we have two pipelines that are flowing from the united states to canada, portland to montreal. that's a long distance. portland and another one for portland to montreal. the bay to edmonton. from mexico to the united states. renosa to el paso. folks this isn't stuff we haven't done before. there is a system by which we approve pipelines.

and especially the ones that -- so my point is this is not new. and we do it for the public interest and the public good to make sure that we have a free flow of oil and refined products. environmentally safe. can you imagine if all that product was moving by truck? or by train? this is such a ridiculous debate that i'm -- i -- it's just furious at we don't understand how much product flows by pipeline today and the environmental benefits of that but here we're demagoguing one pipeline to make it more energy secure and i think my friend from texas mr. green would like some time. >> would the gentleman yield? >> i would. >> taking advantage of your map, i want to show members why i'm concerned about the legislation. but this amendment is a bad amendment to a bad bill. if you look at central part of the united states where texas is at, so many of the pipelines are there. we have existing law already on the national basis.

we have ferc that regulates natural gas pipelines. they don't regulate oil pipelines. but with this legislation, we're changing it with this changing it with this amendment we're eliminating eminent domain that my colleague talked about that have come across the border. so i don't like the bill. i don't think we ought to remake federal law for a pipeline. i support the pipeline. hopefully it will be built. i don't want to mess up things along the way. and if this bill passes with this amendment, it will be doubly worse because eminent domain has been part of our being since railroads were cutting across -- since railroads were cutting across nebraska. and private entities have that right for eminent domain.

and there are regulations honored. if the land owner doesn't like it, you go to the courthouse. you can oppose it. you up getting more money from it. but there's a way to do it in this bill and in this amendment would make it much worse for the rest of the country. >> reclaiming my time. the gentleman from california yield? >> yeah, i appreciate that. one of the things i think we have to remember, too, we're setting a precedent here. this is a precedent not only going to apply to oil lines but will set the precedence. this is what we're going to do with the easements with transmission. as my colleague from massachusetts who has been brave about standing up for wind generation even in a state against opposition, the greatest barrier for renewables to get to cities is the creation of transmission lines down the line. you start setting a precedence that you're going to now not only not expedite the process, you're going to slow down the process of being able to make a linkage between where the energy can be created and consumed. your wind generation in the central wind mill, i'm sorry we don't have a map to show the greatest potential for wind generation is and where the demand is. you follow this precedence and go down the line, there are people who will not be able to invest in wind generation because they'll know this government will not back up the

ability to transmit that clean energy. be careful where you go with this, guys. you may be aiming at the poor canadians because you don't think they care about the environment. but what happens to our strategy when we set the precedence that use of eminent domain is not allowed for natural gas transmission or clean energy. remember, clean energy has a transmission problem two or three times longer than traditional energy. this is going to be a big issue we should be working together with, not setting this precedence. >> to define the map was that this was for crude oil, natural gas, and products as refined product after it goes from the refinery. i just want to put that on the record. yield back. >> the gentleman's time has expired. the gentle lady from california is recognized for five minutes. >> thank you, mr. chairman. in looking at the amendment and the nature of the substitute, on the second page toward the end

it says "while a route modification is under consideration in nebraska, the permit applicant may begin beg pipeline construction in all states other than nebraska. now, given this, how does it come to be that the company is issuing letters of eminent doe main to people if there is not even a route in nebraska? >> is that a question to counsel? i think that the provision is looking at areas outside of nebraska and for much of the route is already secured by the pipeline company. >> but let's go back to the -- maybe to the heart of my question. which comes first, letters of eminent domain or a route for the pipeline so that people know where it's going to go and they can move along accordingly? >> the route is defined both in

transcanada's application and the final environmental impact, and except for a segment of the nebraska route is defined. >> but it isn't all defined, correct? >> a small segment or a segment within nebraska is not defined, but the rest of the pipeline is. >> whether it's small, large or all of it, you're saying it's small. there are still letters of eminent domain being issued to land owners, according to the testimony that was given. i wasn't here for the testimony, but i did listen to the -- i think i need to get a life, i listened to the hearing on tv. i was captivated by the witnesses and what they had to say. >> will the gentle lady yield and i can provide -- >> i would be glad to. >> thank you, anna. the land owner that testified was for the old route in nebraska and the counsel is correct, with your application

you have already worked with the agencies, you know where the route is. then they go in and negotiate. but our governor asked transcanada to move it off the sandhills, so that letter and testimony is on the old route. that's what's causing the confusion here. there is no new route because the permit has been denied and nobody knows if they're supposed to move forward and determine a new route. that's why we have written in here the specifics about entering into a memorandum of understanding and carving out specifically nebraska from this, so that they can proceed to determine a route at which then the pipeline company will sit down and negotiate and then use nebraska law if necessary. >> well, reclaiming my time, i appreciate that. when does nebraska come up with its route? >> well, when the president denied the permit for this pipeline, according to the governor's office they were within a week to ten days of announcing a new site and

beginning the environmental. they have not announced the site because they don't know if they're moving forward or not. so it could be any time, but they need to know which agency they work with. under the past application, the state department said they were going to work with the state of nebraska and then when nebraska sent them a memorandum of understanding they refused to recognize it. >> all right. thank you. >> gentle lady's time has expired. i believe all time is expiring for the debate on this amendment. therefore, the vote will occur on the amendment. all those in favor will say aye. all those opposed will say no. no. the opinion of the chair the no's have it, the amendment is not agreed to. mr. waxman and i have been conferring and we have come to an agreement that we will continue in our absence as we

both go to the conference on the tax extender bill, however, we have also concurred that we will not have recorded votes before we come back, which would be somewhere between -- somewhere probably in the neighborhood ofh at noon. so at this point, i will recognize the gentleman from massachusetts to call up his amendment. mr. markey. and the clerk will report the title of the bill. >> amendment to hr-3548 offered by mr. markey of massachusetts. >> and the gentleman from massachusetts for is recognized for five minutes in support of his amendment and the staff will circulate the amendment. >> thank you, mr. chairman, very much. the keystone pipeline would carry some of the world's dirtiest oil right through the middle of our country, whether it is the carbon pollution that

spews into the skies or the oil spills that could foul our drinking water, there is no dispute that the environmental consequences attached to transcanada pipeline will be grave. but we have been told repeatedly that it's worth it. that it will lower gas prices even though transcanada proje s projects -- the transcanada project would rise because it can charge more for keystone oil in the gulf than it does in the midwest. we have been told that the pipeline will create tens of thousands of new jobs even though it turns out that the number of jobs has been grossly inflated and only about five or 6,000 temporary construction jobs will be created. in a particularly egregious play on american patriotism, and american fears, we have been told that the oil comeling from this pipeline would enable us to

reduce our dependence on oil imported from unfriendly middle eastern or latin american nations. last month, canadian prime minister stephen harper said, quote, when you look at the iranians threatening to block the straits of hormuz, i think this just illustrates how critical it is that supply for the united states be north american. well, this appears to be a complete fiction because under this bill, there are no guarantees that even a drop of the tar sands oil and fuels will stay in this country. this is because many of the refineries where the keystone crude will be sent plan to re-export the refined fuels, for example, valero states in an investor presentation that it plans to refine the canadian crude at the same facility it is building in port arthur because it leverages its "export

logistics." and says that growing global diesel demand is an export opportunity for u.s. refineries. motiva, between shell and the saudi arabian oil company, is another one of transcanada's port arthur, texas, customers. the other customers are a french company, two canadian companies and a multinational venture base in the netherlands. and it is just a regular moneymaker exporting opportunity that many are seeking. port arthur, texas, is a foreign trade zone. so when these refineries re-export the diesel and other fuels they are making using keystone oil, they won't even have to pay united states taxes. hear that again, they will not have to pay united states taxes.

lest anyone think that transamerica, trancanada rather, isn't in the re-export business in december, when i asked the president of transcanada whether he would agree to ensure that the oil and refined fuels stay here in this country, instead of re-exporting them, he said no. sitting right at that table. so that's the plan. in this republican bill. sneak the pipeline into the country, refine the oil and then sneak the diesel fuel right back out of the country. yesterday, the gentleman from nebraska said that tar sands oil could replace 1.5 or 2 million barrels of oil per day that we currently import from the persian gulf. even if the keystone xl pipeline was going to export 36,000 barrels a day, the idea that all of the keystone oil will stay in this country under this bill is

just a fantasy. make no mistake, this bill is not about energy security, it is not about jobs, it is oil company profits, plain and simple. this bill just turns the united states into a middle man in a multinational oil deal between canada, south america, europe and china. the republican slogan last year was drill here, drill now, pay less. now we're letting canada drill there, ship here and re-export there. all so we -- so that we in the united states will have to pay more, both in terms of money at the gas pump and cost to the environment. my amendment ensures if this pipeline is legislate lated the oil and any fuels made using it will stay here to benefit americans here who will pay less here. my amendment