If you’ve been paying attention, you’ve probably noticed that there has been a flurry of Enbridge Line 6B coverage this week. A great deal of it centers upon the harrowing situation at the house of our friend Dave Gallagher in Ceresco (and more and more). And the rest has been instigated by Enbridge itself, which has decided to launch a charm offensive with the press lately (see this and this). We can’t help but think these things are related; Enbridge seems to enjoy few things as much as a pr battle.

Anyway, we think Dave’s story is worth paying attention to. But not only because of the dramatic pictures and videos–and they certainly are dramatic. It’s also important because it illustrates vividly how and why Enbridge has bulldozed its way (literally and figuratively) through the state. In fact, we think that Dave’s situation represents a teachable moment. After all, plenty of other people on this route have experienced what Dave is going through– have you seen the pictures from Beth Duman’s house? Or Amy Nash’s? There are properties right in my neighborhood where the pipe runs within 10 or 15 feet of dwellings, just as it does Dave’s. Dave’s situation, and he’ll be the first to tell you this, is awful, but it’s far from singular.

Unfortunately, much of the press is unlikely to avail itself of the teachability of this moment. This is particularly true of television news. Witness, for instance, this rather awful report from Tom Hillen at WOOD-TV out of Grand Rapids. Go ahead and watch. We’ll continue after you’re done…

There are a number of serious problems here, not all of which are entirely Tim Hillen’s fault. Let’s review:

First and foremost, there are the remarks of the now-ubiquitous Jason Manshum, who unlike most of us has a job where he gets to say things all the time without ever being challenged or without worrying about whether what he says is at all verifiable. This time, he addresses Dave’s concerns that his property value will plummet. In response, Manshum says this:

“Studies have shown on our pipeline as well as other energy transportation companies that values — home values — do not decrease with pipelines. There is not a direct correlation that we have found,” Enbridge spokesman Jason Manshum said.

Those are certainly interesting claims and we would be very eager to verify whether thy are in fact true. For that reason, we’ve written to Manshum asking to see his data. Unfortunately, if history is any guide, he will ignore our query– because, as we said, Manshum lives in a dream-world where it doesn’t much matter whether his assertions are backed by any actual evidence. We’ll keep you posted.

The next problem with the report– and it is a MAJOR problem– is in fact Hillen’s fault. Here is what he says:

Enbridge is able to do the work because it has an easement on Gallagher’s property, which means it owns some of the land in his backyard.

Now, it’s not clear here whether this is something that Enbridge said to Hillen or whether Hillen generated this statement on his own. But one thing is clear: this is absolutely NOT TRUE. And the fact that it is not true is why this report is not only sloppy, but positively harmful. It does a tremendous disservice not only to Dave Gallagher, but to public discourse. It feeds a terrible misconception about property rights in general and Enbridge’s treatment of landowners in particular.

An easement does NOT mean that Enbridge “owns some of the land” on someone’s property. Dave Gallagher owns that land, period. An easement (or a right of way) simply means that Enbridge has the right to access and use that land for specific activities as specified in the easement agreement. They do NOT get to do whatever they want with it whenever they want to. They do not have total control over that property nor do they have total control over what Dave Gallagher does with that property. Even Enbridge would not dispute this. They can’t dispute it because it is a legal fact. And because easement rights are not ownership, it is entirely possible for easement holders (like Enbridge) to abuse or overstep their easement rights. (One might even argue that Enbridge has abused its easement rights). But just because Enbridge would not or cannot claim that they “own” the land for which they hold rights-of-way doesn’t mean that they’re not perfectly happy to have landowners and the public believe, mistakenly, that having an easement means owning that property. The more people believe that, the less likely Enbridge’s activities are to be challenged; the less likely know-nothings who post internet comments on stories like this one are to sympathize with situations like Dave’s. That’s just the way Enbridge likes it.

The last problem is the fault of Enbridge and Hillen both. On the subject of eminent domain, this is what Hillen says:

Enbridge says they didn’t have to pay Gallagher or other land owners, but they do because they want a good relationship with them. According to Manshum, Enbridge has eminent domain, which would give the company the right to lay the pipeline no matter what.

This is misleading at best. What does Manshum mean when he says Enbridge “didn’t have to pay… land owners”? That they don’t have to pay for exercising their easement right? That may be true, depending upon the easement agreement. But in most cases, that’s beside the point. Rather, the issue of payment frequently has more to do with (a) the acquisition of NEW easement rights– which is the case with Dave’s property. For that, they do have to pay; and (b) the use of “temporary workspace” and whatever damages that use causes. On our property, for instance, Enbridge took (temporarily) an additional 65 feet outside their existing easement. That’s where most of our trees and our garden were. Enbridge DID have to pay  for that; they did not just pay us “because they want a good relationship with” us, as Manshum claims. They were legally obligated to compensate us for damages.

Perhaps even worse, though, is both Enbridge’s and Hillen’s glib treatment of eminent domain. Manshum trots it out, callously, like a sort of trump card and in doing so characterizes the whole situation so that it appears that every scrap and crumb Enbridge gives out is a sign of its tremendous generosity, when if they really wanted to they could just trample on us all like cockroaches. This is exactly what Enbridge VP Mark Sitek said to us after we went round and round for quite some time. One can only assume that this is what Enbridge really believes, despite all the good neighbor rhetoric: “you helpless, groveling peasants ought to be grateful we’re giving you anything at all!”

Hillen and his colleagues are all too happy to promulgate this view. Just watch their daft back and forth about it at the end of the report, shrugging their shoulders about eminent domain as if it’s just a fundamental law of the universe: “yeah, that’s just how it is with gravity. Nobody could stop that apple from falling from that tree.” The problem, however, is that eminent domain is NOT a natural law. Enbridge was granted that right by the Michigan Public Service Commission, through a process that, as we have written about exhaustively, was deeply flawed and failed to serve the interests of the citizens of this state. Hillen had a chance to explore that, to initiate a discussion about the use (and abuse) of eminent domain. But he did no such thing. Instead, he simply demonstrates that he doesn’t really understand eminent domain law any more than he understands easement rights.

As a result, a chance to actually inform the public, to explain to people why, aside from mere “inconvenience,” landowners might have some legitimate complaints, to use Dave Gallagher’s terrible story to help people understand easement rights or how and why foreign companies are granted the power of eminent domain, or to initiate some important discussions about matters like property rights and energy policy and our regulatory systems, things that ought to be of interest to every citizen, is missed. And because of that, even though Enbridge isn’t running bulldozers right outside all of our living rooms, we’re all still getting Gallaghered. Score another one for Enbridge.