Texas pipeline companies have simply thought that by checking off the box “common carrier” in an application a company would be provided the necessary authority to act as a common carrier. The statute does not specifically designate some pipelines as common carriers in a fashion that they will be treated as publicly regulated companies.
Without the regulation, the attributes necessary to obtain the power of eminent domain simply do not exist.
Under the current procedure, pipeline operators must obtain a “T-4” permit from the Texas Railroad Commission if they plan to build a new pipeline, to add to an existing pipeline, to delete a portion of the pipeline or to change operators for the pipeline. In this form, the pipeline operator — not the TRC — designates whether the line will be operated as a common carrier, gas utility or a private line, said general counsel for the TRC Lindil Fowler. Operators who are found to have lied, are subject to potential felony charges.
If a pipeline is classified as a common carrier, the operator can use eminent domain to build on private property. But the designations are at the center of disputes in several lawsuits by Texas landowners, including Crawford.
The committee discussed whether operators themselves should be able to decide whether they are "common carriers" with the right to use eminent domain or whether the state should have more oversight in the process...
Greg Schnacke, executive director of government relations with Denbury Resources, a pipeline operator being sued in Texas, also warned that changing the approval process for a common carrier “could severely impede the development of pipelines in the state.”