Energy and Eminent Domain

By James W. Coleman and Alexandra B. Klass. Full Text.

This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in Kelo v. City of New Londonin 2005 but are now under increased scrutiny. This Article evaluates why U.S. energy transport projects have become so controversial and suggests how states and the federal government should evaluate the need for eminent domain for these projects and enact appropriate reforms. We first detail the significant changes in the U.S. energy landscape that began in approximately 2007, just after the post-Keloreforms had run their course. We then consider the potential consequences of the current backlash against eminent domain for energy transport projects. We suggest ways for policymakers, advocates, and others to reconsider the role of Kelo-style arguments in the context of energy transport projects and enact reforms that will allow critical energy projects to be built in a manner that better accommodates impacted communities and provides additional procedural rights and compensation for landowners. Such reforms can include enhanced compensation for energy project-related easements taken by eminent domain, creating a presumption in favor of limited term easements, new option rights for landowners, and expedited judicial review of public use determinations. In evaluating these reforms, we draw on foundational property theories both supporting and criticizing current judicial approaches to public use and just compensation.