Pipelines, Protest, and Property

Abstract

This invited essay analyzes the recent Keystone XL and Dakota Access Pipeline protest movements through a property law lens, emphasizing for an interdisciplinary audience the complex social relationships implicated in most private property dynamics. It includes an overview of the Keystone XL and Dakota Access conflicts through the summer of 2017, but it does not attempt to resolve any of the lingering legal controversies. Instead, building on the progressive property literature, this essay uses these pipeline protests as an illustration of the inherent tensions in the private and public dimensions of property. Themes explored more specifically include (1) the prevalence of non-economic values imbedded in private resource claims, (2) the importance of accounting for private property’s impacts on both owners and non-owners (a point that is particularly salient when considering, as the essay does, the specific history of indigenous land claims in this context and the constructed nature of ownership itself), and (3) the relative dynamism of property over time (with examples from property-related reconciliations and reforms occurring inside and outside the legal system along the Nebraska pipeline route). Ultimately, this essay explores how these protests may leave lasting impacts on our collective understanding about the relative interconnectedness of private land uses in the Great Plains.

Note: This is a pre-publication draft. Comments welcome.

Keywords: Property, Energy, Land Use, Indigenous, Pipeline

JEL Classification: K11