Eminent domain is like a nipple. It serves an important purpose, but you don’t expect to see it in action—witnessing the full extent of the government’s power to seize private land usually makes the public uneasy.
The proposed Keystone XL pipeline expansion is making some property owners in Nebraska very uneasy right now. The Senate is expected to vote today on whether to force the approval of KXL before the project goes through the full environmental review process, but let’s back up to something that happened in 2012. That’s when the government of Nebraska delegated its power to seize land to “any company…created for the purpose of, transporting or conveying crude oil,” as long as the company gets the governor’s approval. In the case of KXL, that firm also happens to be foreign. Earlier this month, TransCanada filed the paperwork to exercise eminent domain power over the landowners who refuse to sell their property along the pipeline’s proposed route.
Some of those landowners are locked in a long-running legal battle to stop the seizure, with a new lawsuit filed recently to prove they have standing to sue. (Landowners in Texas took a more aggressive tack back in 2012, camping out in trees on seized land and handcuffing themselves to heavy machinery (getting Tasered and pepper-sprayed in the process).
The outcry over a Canadian company taking lands from Americans comes not just from environmentalists who oppose the pipeline—it would increase carbon emissions and puts the important Ogallala aquifer at risk—but also from some conservatives. Eminent domain puts Republicans in an awkward position. It’s great for oil companies, but it also pits government power against individual liberty. Last February, the American Enterprise Institute’s Tim Carney asked in the Washington Examiner, “If the pipeline is economically so valuable, shouldn’t its developers be willing to pay what it takes to build it—without the government putting a gun to the head of landowners?” (Carney’s conservative credentials include accusing President Obama of being against stay-at-home moms and titling his Mario Cuomo obit “Mario Cuomo’s Abortion Argument Is a Bloody Legacy.”) Michael Barone, a colleague of Carney’s at AEI, quickly shot back that if eminent domain could not be delegated, “railroads, pipelines and electric transmission lines…would never get built.”
The name “eminent domain” derives from a Latin phrase that roughly means “superior right.” The government holds an interest that supersedes your ownership rights, and the implication is that your land isn’t so much “yours” as it is “yours for now.” As long as the government, or one of its delegates, throws a few shillings your way, your land is gone. This situation is actually an improvement over the original incarnation of the sovereign right. Before the ratification of the federal Bill of Rights in 1791, few governments bothered to compensate landowners for property seized through eminent domain. “Taking one for the team” was serious business in the 18th century.
There has been no end of litigation over government seizures, but courts aren’t usually sympathetic to landowners who contest eminent domain. When Cincinnati landowners refused to sell their land for a post office in 1875, the Supreme Court criticized their “obstinacy” and called eminent domain “essential” to the government’s “independent existence.” In 1890, the Cherokee tribe sued to prevent the Southern Kansas Railway Company from seizing its property under a grant from Congress. The Cherokee lost. The tables were turned on railroads in 1896, when the Gettsyburg Electric Railway Corporation refused to sell land for a Civil War battle memorial. The government won that one, too. I could go on, but you get the point—if you take the government to court over eminent domain, you’re probably going to lose.
Since the judiciary isn’t inclined to block the exercise of eminent domain, the only real check on the power is through political opposition. Unfortunately, that doesn’t work very well, either. If you could take anyone’s land whenever you wanted, would you give up that power? Neither would politicians.
Take the infamous 2005 case of Kelo v. City of New London, the last time eminent domain, er, dominated the headlines. The Connecticut city sought to seize land for the redevelopment of blighted downtown areas and the local waterfront. There were no plans for improved electricity transmission, no public park, no highway…not even an oil pipeline. The city’s only argument was that redevelopment would create jobs and benefit the town economically. You can guess what happened: the government won at the Supreme Court.
The victory carried a price, though. Citizens across the country called on their representatives to rewrite eminent domain statutes, restricting its exercise to true public uses. A majority of states made changes, but many of those revisions were cosmetic, and abuses continued.
Very little changed in Nebraska, where the government continues to take a broad view of what constitutes public benefit. The Institute for Justice gave the state a D+ for its post-Kelo reform efforts, saying there was nothing stopping private entities in Nebraska from exercising eminent domain for reasons not truly beneficial to the public.
Historically, few people questioned whether oil pipelines were in the public interest. Until scientists fully appreciated the dangers of runaway carbon emissions, not even environmental groups typically opposed the use of eminent domain for pipelines (despite their potential for serious accidents).
“Look at state law: It’s much harder to build an electricity transmission line than a pipeline,” says Alexandra Klass, a professor of environmental and energy law at the University of Minnesota Law School. “You don’t even have to get a certificate of need.”
But times have changed. Eminent domain is an exercise in public power, so corporations that seek to use it ought to answer hard questions not just about economic benefits, but also about the environmental and social implications of their projects. Critics say Nebraska is out of step with voters’ wishes.
“TransCanada used their money and lobbying power in our state to buy a bill that gave them eminent domain powers,” says Jane Kleeb, founder of the advocacy group Bold Nebraska. “All they have to do is go through the governor’s office.”
If legislators in Nebraska or elsewhere want a lesson in the consequences of eminent domain abuse, they can look to New London, Connecticut. Nearly a decade after the city seized private property for economic redevelopment, many of the plots remain vacant. Although a vacant, unused oil pipeline might not be such a bad thing, probably better not to build it in the first place.
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