Thursday, January 27, 2011

"TxDOT, on the hot seat of sunset review, wants lawmakers to believe it's reforming itself..."

TxDOT Director resigns, too little but not too late


Terri hall
Copyright 2011

Yesterday, with the announcement that Texas Department of Transportation (TxDOT) Executive Director Amadeo Saenz will retire at the end of August comes much relief from the grassroots who have insisted that change at the top of the beleaguered agency is necessary to move transportation forward. However, the speculation has already begun as legislators, local officials, and taxpayers contemplate who will be tapped to run the agency when his predecessor won't be named until AFTER lawmakers leave Austin for two years.

So even when we're handed a bone cloaked in "reform," we won't truly know if the new Executive Director will be any different than our last several "yes" men, who implemented the Governor's "toll everything" marching orders without question, even if it meant breaking the law. They're doing it this way, by design.

TxDOT, on the hot seat of sunset review, wants lawmakers to believe it's reforming itself, when the Grant Thornton Audit already found that TxDOT's reform efforts have done nothing to transform the way the agency operates. The last thing an out of control government agency, that now holds the key to levy unlimited new taxes on driving, wants is accountability and reform and an end to its ability to grow its budget, power and bureaucracy.

Corruption unveiled

We've seen unparalleled overreach by TxDOT: fraudulent environmental documents (that caused an unprecedented move to be prohibited from doing the environmental work for 281 & 1604), rigging votes at local MPOs to force them into toll scenarios, attempts to force local officials to sell a public toll system to private toll operators, perverting the law so it can convert EVERY SINGLE MAIN LANE of existing freeways like SH 281 in San Antonio and SH 290 in Austin into toll roads, and throwing anti-toll officials off of MPOs if they dared to vote against TxDOT's toll projects.

TxDOT repeatedly rigs it's "advisory committees" with Chamber of Commerce devotees, government bureaucrats, RMA and MPO officials who have vested interests in a toll regime then have the gall to call them "citizen-driven." We've even witnessed TxDOT employees filling out "public" comment cards in approval of TxDOT's plans at public hearings.

Leadership in crisis

Then, also under Amadeo Saenz leadership, TxDOT illegally hired registered lobbyists to directly lobby local elected officials, particularly county judges with the power to appoint arbiters over eminent domain disputes, to garner their support for the Trans Texas Corridor (which involved the biggest land grab in Texas history) and hired a PR firm to try to convince a skeptical public that it should want private, foreign companies tolling Texas roads (who pay TxDOT huge sums of money in exchange for the right to toll our citizens 75 cents PER MILE to drive our public roads).

Let's not forget the $1.1 billion accounting error and the Grant Thornton Audit that found TxDOT's financial reports COULD NOT BE VERIFIED, that inspectors who were required by law to be licensed weren't, and that management had a deep-seated belief that TxDOT was doing everything right and the public just needs to understand how right they are.

"I'm the most arrogant Commissioner..."

So while the Transportation Commissioners responsible for overseeing this bunch gush over Saenz' service to TxDOT, he and many other top managers and the Governor's five appointed commissioners ought to be shown the door... IMMEDIATELY!

Remember Transportation Commissioner Ted Houghton actually bragged, "I'm the most arrogant commissioner of the most arrogant state agency in the state of Texas" and called opponents of foreign-owned toll roads, "bigots." The Commissioners themselves are just as much a part of the problem, if not the crux of it. With such gross abuse of the public trust and the heinous mismanagement of taxpayer resources, nothing short of a total house cleaning will do.

Business as usual

Sadly, most of our lawmakers see such abuses as "business as usual" in government and are rarely shocked by the corruption uncovered inside TxDOT. They tell us, particularly the members of the Sunset Commission (who are charged with fixing the waste, fraud, and abuse inside government agencies who are handpicked by the Speaker and Lt. Governor), that a single appointed commissioner is enough "reform," and insist no fundamental change is necessary. We MUST hold their feet to the fire if we're to clean-up TxDOT, or perhaps the house cleaning needs to spread to the next election.

© 2011

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Tuesday, January 25, 2011

"These eminent domain laws and reforms actually do very little to protect landowners."

SB 18 – An emergency, or just a Trojan Horse?


by David Daniel
Copyriht 2011

Below are some quotes, views, and insights from various articles concerning Perry’s declaration of SB 18 as an emergency item, thus putting the bill on the fast track that places it on the forefront(first 30 days) of the 140 day 82nd legislative session.

First, from the “Aransas Pass Progress.”

“One bill to watch is Senate Bill (SB) 18 which seeks to confront the issue of eminent domain. SB 18 would expand upon the protections the State of Texas has put into place for private property owners since the United States Supreme Court ruled in a 5-4 decision that “public use” included economic revitalization projects.

In 2005 the Texas Legislature defined “public use” to exclude any use in which confers a private benefit on behalf of a private party. SB 18 would seek to take the defense of private property a step further and establish that an entity with eminent domain authority must state with specificity the public use in which the entity intends to acquire the property, amongst various other new provisions.”

Second, from the “Post Register.”

The proposed legislation, in addition to accomplishing other tasks, will require the following:

- A public and record vote to initiate eminent domain proceedings;
- All entities with eminent domain authority to register with the State Comptroller by December 2012;
- Condemning entities to make a bona fide offer in writing and if not, to pay the property owner’s expenses and attorney’s fees;
- Impairment of access to the remaining property to be identified and taken into consideration when determining compensation; and
- Land to be sold back at the price it was condemned if it is not used with in 10 years.

Third, from Terri Hall and the

“Ever since the Ft. Worth Star-Telegram Mike Norman expose’ of Rule 37 abuses by oil and gas companies hit the fan a week ago, is it any wonder that the Perry-inspired eminent domain bill, SB 18, being carried by senators Craig Estes and Robert Duncan is a handout to oil and gas firms and declared an “emergency”?”

“They know the tidal wave of opposition is coming and they had better change the eminent domain laws so that the oil and gas industry can continue its land-grabbing abuses of property rights.”

“SB 18 expands the number of entities who can take your land by changing much of the language to include any “entity,” not just governmental entities with eminent domain authority. In fact, it removes the word “governmental” in many sections of the code, thus making it possible for Cintra or any other private toll operator or private developer to take your land for commercial purposes.”

Now, here is my perspective, one from a landowner who had been threatened with eminent domain. These eminent domain laws and reforms actually do very little to protect landowners. Granted, they are better than nothing, but do not reflect the majority of landowners impacted by a project.

Below is an example of a statistic given by Terry Cunha, a spokesman for TransCanada, the foreign company who sent me a letter from their attorney dated 11-13-08 stating that their legal right to conduct surveys on my property, after they had already trespassed, arises from its power of eminent domain under Texas law and that they have not “YET” instituted eminent domain proceedings with respect to my property. It is important to note that this occurred months before they started negotiations and before they gave me the Texas Landowners Bill of Rights.

Cunha says “TransCanada has concluded successful agreements with 98 percent of the landowners along the proposed Keystone XL route through Montana, South Dakota, Nebraska, Kansas, Oklahoma and Texas.”

“That clearly demonstrates that we are working diligently and co-operatively with landowners across our pipeline route,” Cunha says.

“Our commitment is to treat all of these landowners with respect and come to the best possible solution when working with them … An eminent domain process is used at very last resort, and it’s never used in any discussion or used as a threat in any way.”

In addition to the letter from TransCanada‘s attorney, I had eventually received a final offer and with that final offer I had been told that if I do not take this offer I would be taken to court where my property would be condemned, I would start at zero, receive no additional clauses for erosion management and water testing, and that I would have court and attorney fees. These two examples contradict Cunha’s claim that eminent domain is “never used in any discussion or used as a threat in any way.” In addition, TransCanada still does not have the required Presidential Permit and the E.P.A. rejected the Environmental Impact Statement declaring it inadequate.

If I use TransCanada’s number of 98% successful agreements without the actual use of eminent domain then only 2% of landowners could possibly benefit from the eminent domain reform. The other 98% will be made up of landowners who can not afford the eminent domain process, felt threatened and intimidated, do not understand the process, or just could use a little extra money in exchange for an indefinite easement.

As Terri Hall pointed out “SB 18 expands the number of entities who can take your land by changing much of the language to include any “entity,” not just governmental entities with eminent domain authority. In fact, it removes the word “governmental” in many sections of the code, thus making it possible for Cintra or any other private toll operator or private developer to take your land for commercial purposes.” Therefore, by not limiting the description of entities, the abuse and intimidation will be compounded exponentially for the majority who have no recourse or protection since the majority make agreements prior to their land being condemned.

Also, according to the “Post Register” comments above, “Land to be sold back at the price it was condemned if it is not used with in 10 years.” However, the revised and proposed SB 18 actually states; “the owner or the owner’s heirs, successors, or assigns may be entitled to repurchase the property.” The old version stated; “are” entitled to repurchase the property. The above information is required to be disclosed. What is not required to be disclosed is the complicated process that depends on the entity notifying the landowner after ten years that the public use was cancelled and that the landowner is entitled to repurchase the property. Or, if a landowner has not heard from the entity after 10 years, the landowner can request information regarding the condemnation. No later than 180 days after a response from the entity, the landowner must notify the entity of intent to repurchase the property. Then, as soon as practicable, the entity shall offer to sell the property. The person’s right to repurchase the property expires on the 90th day after the date on which the entity makes the offer.

If the 2% has such a great deal going for them, as mentioned above, then what does the remaining 98% have going for them when the eminent domain laws/protection do not apply? If, as in my case, a landowner does not want to sell but feels that there is no other viable option due to an entities ultimate power of eminent domain and an overt imbalance of funds and legal representation, then, is it not a forced sale? This forced sale then gets categorized in the 98% as a successful agreement. Do these forced sales or otherwise successful agreements have the same recourse and entitlement to repurchase, etc? Even criminals have the right and option of a court appointed attorney to help them in the interest of fairness. Landowners, whose land is being taken(stolen) from them and whose lives are being put in harms way, do not have any viable option if they do not have the money and resources to fight it, protect themselves, or even make an informed decision.

I presented a petition to a representatives office that asked for the creation of a public policy that, at all relevant levels of the state government, would require any corporation to fully establish all permitting approvals from all relevant agencies, prior to claiming and exercising condemnation / eminent domain rights against landowners. I felt that this was not an unreasonable request but was told that a public policy like this would not pass.

In conclusion, it appears obvious that Perry’s reform would only slightly benefit a very small percentage of landowners and that the emergency SB 18 would open the flood gates for any entity to abuse the majority of landowners. I say Perry’s eminent domain bill would be a victory for “entities” and as Terri Hall said “a disaster for landowners.”

The proposed bill can be viewed at the link below:


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Monday, January 24, 2011

"There’s reason to keep your eyes open and a hand on your wallet."

For Super Bowl visitors, it's buyer beware on toll roads


The Dallas Morning News
Copyright 2011

For Super Bowl visitors, or anyone else who uses a rental car on North Texas toll roads, there’s reason to keep your eyes open and a hand on your wallet.

Driving a rental vehicle on the toll roads can get costly, both because the North Texas Tollway Authority charges its highest rates for most such customers and because the car companies can tack on “convenience” fees that in some cases far outstrip the cost of the tolls.

NTTA officials warn fans coming for the big game — and locals who use rentals — to pay attention to their rental contracts so they won’t be surprised by bills that sometimes don’t show up until the rental cars are returned.

The steepest fees can be avoided by setting up temporary accounts with NTTA or by agreeing in advance to smaller fees as part of toll-paying services offered by the biggest car companies.

But with the Super Bowl less than two weeks away, NTTA officials say drivers need to be aware that failing to take these steps can lead to big bills for drivers who use toll roads in rental cars. That’s especially true because many visitors will be unfamiliar with North Texas and its heavy reliance on toll roads.

“Some rental-car agencies, especially the small ones, will just add an additional cost into their pricing and they just pay for tolls,” said Clayton Howe, assistant executive director for operations at NTTA. “Some offer a flat fee — they look like another one of those add-on fees you see when you are renting — and you can choose to opt in or opt out. But our research shows there are about 2,000 rental locations spread out over the metroplex, and each one has the right to operate a little differently.”

Here’s why it’s confusing: NTTA no longer has any cash toll booths on its roads. Instead, it electronically bills customers who have a TollTag on their windshield. And for those who don’t — and that includes most rental car customers — it uses thousands of cameras stationed along the roads to take pictures of the license plates.

Being billed by camera already jacks up the toll rate by 50 percent, But the real problem is that the bills go to the owners, not the drivers. In the case of rental cars, that means they go to the rental agencies. And what those companies do varies.

This month, NTTA board members reacted with surprise when staff members told them rental-car agencies levy fees that often are many times the cost of the tolls.

“We’re hearing from our customers, and they are seeing bills for up to $25 per toll,” Howe said last week.

Neil Abrams, president of a consulting firm whose clients help rental companies process their toll charges, said most customers will never see hefty fees for toll use — not if they buy the much cheaper options that nearly all of the major rental firms offer.

“Most of the major rental brands have technologies installed in the vehicles and connected to their rental operating systems which charge renters for the tolls, plus a small daily or weekly charge for the service — which is not mandatory,” Abrams said.

Customers who see the higher surcharges, he said, are those who decline the optional toll charges at the time of rental and require the toll agencies to research and bill each of the invoices sent their way by the toll authority.

“It’s buyer beware,” Abrams said, noting that toll authorities routinely charge an administrative fee of $25 or more for every toll transaction that goes into collections.

NTTA’s collection system includes just such a process, and it has garnered a great deal of criticism from toll payers and left many customers owing hundreds or even thousands of dollars in charges.

NTTA said the rental-car fees usually affect only a few customers. Each day, about 13,000 of the authority’s 1.4 million daily toll transactions are incurred by rental cars. Most of those are by local drivers, many of whom are already TollTag customers. Many, too, are using loaners from repair shops that have TollTags installed, he said.

“But the Super Bowl is a very atypical time for us,” Howe said. Most of those rental customers will be from out of town, unfamiliar with the toll roads and in cars that don’t have TollTags.

That’s why NTTA suggests fans and others look closely at their contracts when they pick up their rental cars. If they don’t like the terms of the toll payment options offered by the car companies, they have another route to consider, Howe said.

NTTA allows customers to set up temporary toll accounts for rental cars or any car they are using temporarily. To do so, customers must call the authority and use a credit or debit card to put a deposit on a temporary toll account.

The tolls will be charged directly to the driver’s credit card, and any excess money paid will be refunded when the car is returned.

“The NTTA is committed to providing all customers a convenient way of paying for tolls to avoid additional fines and fees,” Howe said in a statement explaining the program, known as the Zip Pass. “Visitors will have the peace of mind that comes with knowing all their tolls have been paid in a timely fashion, while having the benefit of traveling D-FW via toll roads.”

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"There's just something that the folks down here don't like about a foreign oil pipeline coming through and threatening people with eminent domain."

One oil pipeline too many for Texas?

TransCanada's plan to pipe in tar sands oil angers Texas landowners who say they resent being pushed around by a foreign company.


By Kim Murphy,
Los Angeles Times
Copyright 2011

Reporting from Port Arthur, Texas —
Texas has rarely met an oil facility it didn't like. Ever since Spindletop sent a gush of crude 150 feet into the air near here in 1901, Texans have been mostly willing to put up with the spills, smokestack belches and massive refinery vistas that go along with big, fat pots of "Texas tea."

But that was before a Canadian company, TransCanada Corp., came forward with a plan to build a 1,700-mile pipeline to carry heavy, high-pollutant oil from the tar sands under the boreal forests of northern Alberta, across the American heartland, through scenic ranchlands in the piney woods of east Texas and on to refineries near Houston and Port Arthur.

For many in Texas — who are holding meetings, passing out leaflets and hosting neighborhood talks with, of all people, the Sierra Club — the Keystone XL pipeline is a barrel too far.

Warnings that the pipeline could worsen the state's already potent refinery emissions and threaten water supplies have riled up people not normally inclined to cotton to environmentalists; TransCanada's heavy-handed approach to obtaining easements through rural property — a mix of dickering and threats of eminent domain — has populated the Sierra Club's recent meetings with rural residents in denim shirts and silver belt buckles whose political inclinations lean more toward the "tea party" movement than eco-activism.

"Basically, what you're saying is they're going to shove it down our throat, whether we want it or not?" Charles Crouch, a former refinery worker, said at a meeting on the pipeline last month in Lufkin. "That's hard to do in Texas, I'll tell you. We get riled up, and we're going to figure out a way to stop this thing."

Across the state, there have been similar rumblings of petro-rebellion.

"You gotta be kidding!" one man in Tyler shouted when told that the 36-inch pipeline would run hot, corrosive oil through buried steel pipes whose walls are less than half an inch thick.

The State Department is expected to decide soon whether to require additional environmental studies before approving the Keystone XL project, which would run through an aquifer in Nebraska that provides up to 25% of the nation's agricultural irrigation, en route to Texas, where the Environmental Protection Agency has said more documentation is needed on potential worsening of poisonous refinery emissions.

Secretary of State Hillary Rodham Clinton promised a "meticulous environmental review," a standard conservationists say can be met only by doing a substantial number of new studies.

A similar pipeline in the $12-billion Keystone system, from Alberta to Oklahoma and on to market hubs in the Midwest, began operating in June. Keystone XL would run 1,660 miles southeast through the same region to Cushing, Okla., then jut south to Houston and the Texas Gulf Coast.

Already, 12 Oklahoma residents who were sued by TransCanada over access to their property are mounting a legal case to question the public benefit of the pipeline. Nebraskans, who staged a protest at the state Capitol this month, have been even more vociferous in opposition.

Even in Texas, dozens of people showed up at each of the Sierra Club meetings across the state in December, and many stayed on afterward to organize letter-writing campaigns and community resistance councils.

"Going into this, we didn't know how Texans would respond. And I've honestly been surprised at how receptive Texans have been," said Ian Davis, senior field organizing manager for the Sierra Club in Houston. "There's just something that the folks down here don't like about a foreign oil pipeline coming through and threatening people with eminent domain, and threatening our lands and our water."

The pipeline fight is somewhat at odds with the war Texas state officials have waged against the new Obama administration regulations on greenhouse gases that scientists say are warming the planet. Texas is decidedly in the global warming doubters' camp.

But for many conservationists, the battle against the Keystone XL project fits squarely in a climate change agenda. It is about stopping extraction of tar sands oil, which they say threatens to devastate Canada's boreal forests and waterways and release heat-trapping gases into the atmosphere.

The Environmental Protection Agency has estimated that annual greenhouse gas emissions from transporting and burning oil from the Keystone XL pipeline would be 27 million metric tons a year — or 82% greater than the average crude processed in the U.S.

The agency has urged the State Department to beef up its environmental review, pointedly saying its analysts need to "substantiate" their assertion that emissions won't be significantly worse by burning tar sands oil at Texas refineries. Tar sands, a thick, peanut-butter-like bitumen that is chemically thinned and heated for transport, can contain 11 times more sulfur and nickel, six times more nitrogen and five times more lead than conventional crude.

Canadian oil operators have said they have cleaned up and reduced the carbon footprint of their extraction processes, and they promise further improvement. Meanwhile, Port Arthur refineries already have been gearing up to process a variety of heavier, sour crude not only from Canada but from parts of the Middle East, Venezuela and Mexico.

"I don't think we've projected any additional emissions due to Canadian crude, because we're already processing heavy grades of crude at Port Arthur," said Bill Day, spokesman for Valero Energy Corp., which has announced plans to process additional Canadian oil.

One of the big issues raised at organizing meetings here is safety, and warnings about the possibility of ruptures and leaks.

In July, a 41-year-old pipeline carrying Canadian tar sands oil in Michigan spilled up to 1 million gallons of oil into the Kalamazoo River, which flows into Lake Michigan. Enbridge Inc., which operates that pipeline, also reported a spill of about 126,000 gallons near Neche, N.D., in January, and 50,000 gallons in rural Wisconsin in 2007.

TransCanada initially sought permission to operate Keystone XL at pressures higher than those normally approved in the U.S. but backed off in the face of widespread concerns, leaving the door open to reapply for the high-pressure permit once the pipeline established a safety record.

"We're meeting all of the guidelines that have been put in place by the U.S. government," said Terry Cunha, spokesman for the pipeline company.

Cunha played down concerns that the tar sands oil is inherently riskier to ship than other oil.

"We are just a pipe builder; we are not the owner of any crude oil, but the oil we're shipping is meeting all of the guidelines put in place. It's similar and comparable to oil you'd find coming from California, the Middle East, Venezuela — this oil is no different," he said.

Neil Carman, a former state refinery inspector who now works for the Sierra Club, warned at a community meeting in Houston that the higher sulfur content of Canadian tar sands oil could elevate the risk of release of deadly hydrogen sulfide gas.

But it's the manners of the Canadians that stick most in the craw of Texans. At many of the Texas meetings, landowners complained that surveyors for TransCanada have shown up on their property unannounced, followed by land agents pushing them to sign easements.

David Daniel, a Winnsboro carpenter, said TransCanada notified him it would need to cut down most of the trees in the wooded valley that lies at the heart of his property in east Texas.

"I asked them, what are the chances of this thin-wall, high-pressure pipeline rupturing, compared to other pipelines? They said there's no study available — we won't know till the line has been in service for many years. So I'm a lab rat on my own property," Daniel said.

Daniel signed after TransCanada threatened to take him to court, and after pipeline workers showed up at his door to ask him why he was threatening their jobs — apparently convinced that the project will create more than 50,000 "spinoff" jobs, as a study promoted by TransCanada predicts.

Daniel immediately started organizing, urging his neighbors to put out yard signs, and meeting with local tea party activists, who were outraged. "Our local newspaper is extremely conservative. A foreign company seizes an American's private property. They jumped all over it," Daniel said. "Then people started getting interested in the safety issues."

Barbara Jean Shuttlesworth of Arp said the pipeline would traverse the 20 acres she and her husband bought years ago to build their future home. They no longer want to live there.

"They tell you, you can either take this money we're offering you, or they're going to take your land anyway. Because they're going to do what they're going to do," she said. "My husband works in the oil industry. I have family members who have been in the oil business for years. This is not the first time we've seen a pipeline. But the way they're doing this, it really makes you feel helpless. It renders you helpless when they put eminent domain out there."

So far, nine of the state's 32 members of Congress are on record supporting the pipeline. In a state already crisscrossed by more than 77,000 miles of utility pipelines, supporters argue, it would be foolish to stand in the way of a project that will help secure reliable energy supplies from a close ally of the U.S. — one that already is the nation's biggest oil supplier.

"Southeast Texas is no stranger to pipeline projects and has operated them safely for years. Pipelines are a far safer way to transport crude, eliminating the greater potential for accidents by tanking it from overseas," Rep. Ted Poe, a Republican whose district includes the Port Arthur region, said in a statement.

"We can continue to rely on unfriendly foreign nations, or we can work with our longtime allies to the north to supply over 1.4 million barrels of oil a day," he said.

Even among many here with long ties to the environmental movement, the economic argument, as it always has in Texas, wins the day.

Hilton Kelley, director of the Community In-Power and Development Assn. and one of Port Arthur's most prominent environmentalists, said the current economic hardship was no time to be saying no to new industrial development.

"The potential for disaster is great," he said. "But I cannot in good conscience stand and protest the pipeline, because of the large number of jobs this is going to create for American citizens. Here in Port Arthur, we're looking at 14.5% unemployment. You'll die faster from starvation than you will from pollution, and that's the only options that we have, unfortunately."

© Los Angeles Times:

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