I remember many of the same people on this board who are strongly in favor of the XL pipeline being apoplectic about the Kelo descision, Many of you stated that condemnation should not be permitted for purposes such as allowing the City of New London to condemn land for the benefit of private concerns, in order to cure urban blight and create jobs. How do you distinguish your opposition to allowing domestic private companies to condemn property in Connecticut to create jobs and create other benefits, from your support of allowing foreign private companies to condemn land to build a pipeline to create jobs and, exploit Canadian natural resources to create other benefits in this country? What if XL is unable to negotiate easements with all the landowners? Should they be able to use the power of condemantion? Apparently, XL has procurred agreeements with a large number of property owners by using the threat of condemnation- not exactly arms length bargaining. They will likely have to use condemnation for some stretches of the pipeline. Thoughts?
Whitman, The main difference is that the taking covered by the Kelo case typically involves the government acquiring all of the landowner's property, or at least a large portion of the surface. Therefore, the effect of this use of eminent domain is pretty extreme. With regards to pipelines, the companies are almost never acquiring the actual property, but instead are acquiring an easement to build a pipeline below the surface. No one is losing their property, like in the Kelo case, and the effect is negligible. Also, pipeline companies, because they are utilities, have had the right to acquire easements by eminent domain for decades. The opposition to eminent domain in the Kelo case was much more similar to that of the Trans-Texas Corridor, where landowners would have actually lost their lands for what a lot of people thought was political cronyism.
Whit Good question and I admit i did not know someone's land would be condemed and the owner forced to sell. I know there are over 90,000 miles of pipeline currently in operation in USA today so are you saying all the land above those pipelines was taken by eminent domain? does the company then own the land above the pipeline? how much easement do they own? for instance if a pipeline goes through a famer's land how much of his land is he forced to sell? Can he still farm on the rest of the land? This seem different than taking someone's entire residence for a commercial development edit to add thanks Johhny you answered my question and that makes sense
Unconvincing distinction. They are taking a part of your land and not all of it, but the principal is the same. Sometimes the entire easement is underground, sometimes all or part of the pipeline is on the surface, but always the owner of the easement is dominant over the owner of whats left of the property. The pipeline company can bring their trucks in to dig up and repair the line, can have surface access points with a permanent equipment footprint, and can prevent the owner from building structures over pipeline. There is usually a building setback requirement, telling the owner where he canand cannot build on his land. The landowner cannot plant trees over the pipeline easement. You may think that the sand tar material is perfectly safe to be transported over someone elses land, but if that person disagrees, the decision has still been taken from him. Also, while the pipeline company has to restore the surface to some extent (though not to its original condition), the land owner is forced to put up with the construction chaos, and grant reasonable access over his other lands for construction.and maintenence. I don't buy the "we're only taking part of your property interest" argument - a taking is a taking. I guess the way I see it is that Kelo v. New London was correctly decided. Sometimes the government can appropriately condemn land for the benefit of private interests when there is a large enough public benefit. Whether a pipeline or a shopping mall creates a large enough benefit is a political question though, not a constitutional one as so many insisted when Kelo came down. My opinion is based upon reading a total of two articles, however, so I may be way off base, I admit.
This is a huge pipeline. Eminent domain issues are inevitable. To turn it down because of this is truly silly. I know nothing about Kelo, nor do I care to.
Whether you find it a convincing distinction or not is your call. Easements are a fact of life whether it be the telephone line easement behind your house or, as Horn 6721 pointed out, the over 90,000 miles of pipeline already in existence (and I imagine growing by thousands of miles every year). The government has granted companies the right to obtain pipeline easements by eminent domain for decades because it would be almost impossible to transport oil and gas otherwise, and therefore there is a significant public interest. But I think most people would find a taking of your entire land to be far more extreme than the granting of an easement.
I don't much disagree,Jonnyhorn. My point was that a very common view on this board back when Kelo v. New London came down was that it was unconstitutional to use the power of condemnation to take an estate in land from one private party to give it to another private party. It was only constitutional, it was argued, for property to be taken for public use, that is by a public entity, not private use for allegedly public benefit. The Supreme Court held that the use of eminent domain for economic development did not violate the public use clauses of the state and federal constitutions. The court held that if an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed urban area , then the project qualifies as a public use. The court also found constitutional the government delegation of its eminent domain power to a private entity. This board freaked out. From the right, especially, there was outrage that that the power of eminent domain was used to take property rights from private individuals and hand them to a private corporation. From the left, the NAACP objected that it was people who lived in "blighted" areas that had their property interests taken. I am wondering whether looking at the issue in the context of a pipeline has changed some minds. It sounds like you, johnnyhorn, do not disagree with the Supreme Court's formulation, and I think I am in the same place. If someone thinks the Kelo taking was unconstitutional (not merely incorrect politically or from a policy standpoint, but unconstitutional) but that a pipeline taking for a private corporation is not, I am interested in the where the distinction is.
WS, Three problems with Kelo. First, it effectively nullifies any limitation on the scope of eminent domain, because you can always argue that any development serves a public purpose, because it's always going to lead to a job being created or the government making money off of it. "Purpose" is just a lot more subjective than "use," which was the term actually used in the Fifth Amendment. Second, it effectively eliminates the distinction between public and private use, so if a politically well-connected business interest wants to take someone's land and do something with it but can't agree on the price, instead of just having to walk away from the deal, the business interest can just call up his local city councilman or his state legislator and tell him to interfere with the transaction on his behalf. It's pretty brutal if you're a property owner. Third, as the NAACP pointed out, these economic development projects are done on a discriminatory basis. I'm rarely sympathetic to the NAACP, but they have very good reason to complain on this one. There's real discrimination here, and it's government at its worst. Cities do these economic development projects to help their well-connected rich friends make a lot of money without having to show the balls it takes to accept the normal risks of the free market (most important) and to help bring in more city money by boosting area property values (raise taxes without having to admit doing so). Well, they're not going to condemn Whitey's house, because Whitey's house already yields the City plenty of property tax money. Furthermore, Whitey is the one behind the project anyway. The project is intended to help Whitey make money, not screw him around. However, the black man usually lives in lower income areas that don't have as high of property value and therefore don't bring the city much money. Furthermore, he's not rich, doesn't donate to the council members' campaigns, and isn't well-connected, so the council doesn't give two squirts of piss about him. They don't care about the fact that though the black man's home isn't as valuable, he still worked his *** off to buy it, and it's still his castle. It means everything to him. All they care about is money, so they screw with him and use the power of government to help Whitey rip him off and make money off a project he doesn't have the financial cajones to do on his own. How does the Kelo situation vary from XL? There are really only three distinctions and all three pertain to degree, not substance. First, the public benefits much more from having access to petroleum than it does from the narrower business interests involved in Kelo. Second, if you're applying any test based on need, the pipeline project blows the other one away. As a practical matter, you're not going to build a transcontinental pipeline without using eminent domain on somebody. The "economic development" projects are much smaller in terms of land use. They can be done in another areas with fewer landowners and therefore less need to condemn land. Third, the pipeline isn't as big of an imposition on the property. I'm not saying it's not a big imposition. It is, but typically an easement is sufficient. In cases like Kelo, the property owner is actually kicked off his land. That's a bigger deal. Personally, I'm not a fan of either one. I understand the pipeline situation and view it as the lesser of two evils. However, if I ran the show, I wouldn't allow either. If the power of the taxpayer is going to be used to seize land, an easement, or any other sort of property interest, then the taxpayer should own that property interest. If some business wants to come in and lease it from the taxpayer at the fair market value, that's fine, but we shouldn't be conveying the property to the business interest.
