Are Property Rights A Climate Action Tool?

Why Fossil Fuels? Why Not Sun and Wind?

Why Fossil Fuels? Why Not Sun and Wind?

For many, protecting property rights is high on the list of priorities. It’s the American way, shouldn’t it be so? A related and perhaps better question is whether climate advocates should use eminent domain as a tool to advocate against energy related projects.

Answers are elusive.

When the U.S. Supreme Court decided in Kelo v. City of New London that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible public use under the Takings Clause of the Fifth Amendment, property rights advocates were up in arms. There is a role for eminent domain when governments initiate the process, but private developers should have no such rights, they said.

Kelo may mean that when U.S. infrastructure projects are developed by foreign corporations (TransCanada Corporation’s Keystone XL Pipeline) or by U.S. corporations (Energy Transfer Partner’s Dakota Access Pipeline or Clean Line Energy Partners’ Rock Island Clean Line), foreign or private domestic entities have the right to initiate condemnation process and take easements and other property to build their projects.

In a March 2 article, in the Des Moines Register, William Petroski reported, “a majority of Iowans support plans for a crude oil pipeline in Iowa and a wind electricity transmission line project, but they overwhelmingly oppose the use of eminent domain for both projects.”

Politicians have argued that these projects create jobs, decidedly temporary ones, and in today’s economy people should accept such jobs, implying they should also cede eminent domain rights to U.S. or foreign corporations. This couldn’t have been clearer than the Keystone XL Pipeline bill passed in the U.S. Congress, vetoed by President Obama.

Kelo is not without emerging challenges.

On Feb. 18, the Iowa Supreme Court heard oral arguments in Clarke County Reservoir Commission v. Edwin D. and Deloris A. Robins Revocable Trust. The case is an appeal of an April 8, 2014 lower court decision wherein “Judge Sherman W. Phipps of the Fifth Judicial District of Iowa ruled in favor of CCRC’s ongoing Squaw Creek Watershed project, confirming it is for a public use, public purpose or public improvement as defined in the Iowa Code,” according to Amy Hansen of the Osceola Sentinel-Tribune. Developers seek to make a recreational lake much larger than the size required to serve water needs for the community to enhance property values as they sell adjacent lots.

Whatever the outcome of challenges to the Kelo decision, climate advocates are damned if they do and damned if they don’t regarding use of eminent domain as a tool. The contrast between the Rock Island Clean Line and the Dakota Access Pipeline exemplifies the problem.

On Aug. 20, 2014 while on the Great March for Climate Action, David Osterberg of the Iowa Policy Project said Iowa needed a way to get wind-generated electricity out of western Iowa to markets. His view is not unique among climate action advocates. The Rock Island Clean Line offers one such solution, but some property owners along the proposed route won’t allow an easement voluntarily. Osterberg said the Rock Island Clean Line wasn’t perfect, but it did offer a solution to shipping electricity to markets. The implication is that eminent domain may have to be used by a Texas company to build the project, although Osterberg did not say that specifically.

Use of eminent domain to stop the Dakota Access Pipeline is favored by climate action advocates. Because Bakken Oil is dirty, advocates seek to obstruct access to market through Iowa. Eminent domain has made unlikely partners in the Iowa legislature, where Senator Rob Hogg, who has given more than 100 presentations for The Climate Reality Project founded by Al Gore and is author of America’s Climate Century, began partnering with Rep. Bobby Kaufmann, a crop and livestock farmer and small business operator who is also a member of the Farm Bureau and National Rifle Association, to oppose the Keystone XL Pipeline on eminent domain grounds.

As the Iowa Utilities Board evaluates the proposal for the Dakota Access pipeline, eminent domain has more traction than the argument that fossil fuels should be left in the ground because of their contribution to anthropogenic climate change. Climate action advocates favor the latter argument, but will support the former.

Property rights advocates like Kaufmann are unlikely to go both ways on the eminent domain issue.

“The Bakken (Dakota Access) Pipeline and the Rock Island Clean Line should pick out baby names and choose a honeymoon destination, because the two issues just got married,” said Kaufmann in a Jan. 31 interview with the Solon Economist. “You’ve got two different companies that want to ship two versions of energy. They’re both private Texas companies and both want to ship a product out of our state without allowing anyone in our state to tap into it.”

Use of eminent domain hinges upon “public use.” Set aside creation of a number of temporary jobs and the public use of conveyances for energy related products is elusive, especially with the Dakota Access Pipeline. In any case, corporations benefit more than people in both Iowa projects and with the Keystone XL Pipeline.

Property rights can be a tool for climate action advocates, but it has been an imperfect one at best.

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5 Responses to Are Property Rights A Climate Action Tool?

  1. Miz Swanson says:

    A couple other things to consider is if landowners refuse to put up wind turbines or city councils (like in Lincoln County SD where the wind developers are hoping to build) will that be forced by eminent domain as well? No.
    At the inception of RICL 13 East Coast governors wrote a letter to the US Senate stating that they did not need this energy piped in, that they wanted to build their own renewable systems. http://media.washingtonpost.com/wp-srv/politics/documents/governor071210.pdf
    88% of land owners have not signed voluntary easements with the Rock Island Clean Line. Thousands of acres of private property (and only private property-the state will shoulder none of it) will have to be taken by eminent domain. That includes Illinois whose landowners are also against this land grab.
    See http://www.iowastopricl.com

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  2. AR Citizen says:

    We can do better than this. These are OLD models. The NEW Energy Economy will be LOCAL, LOCAL, LOCAL. Local generation and local distribution not these massive industrial/utility scale projects. Due to REAL innovations and energy efficiency measures the demand for Electricity has been DECLINING for the past 7 years!

    Wind is not ‘clean’ it takes energy to make energy, fossil fuels are used to generate, collect, convert and back up Wind.

    The oil and gas co’s from TX are looking for the next ‘golden goose’ in Wind using the same old, same old methods.

    The people they want to exploit are saying, NO.

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  3. Hypocrisy Exposed! says:

    Don’t you just love it when hypocrisy is exposed like this? Are climate activists finally going to admit that they simply USE eminent domain and landowners as battering rams to achieve their environmental goals? Environmental groups need to BUTT OUT of eminent domain issues and let them be handled by the affected property owners.

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  4. Paul Deaton says:

    Thanks to those who read and commented on this article.

    This debate is less about property rights than it is about public use in that context. The U.S. Supreme Court has decided that the federal and state governments have the power to take privately owned property for public use. That is the core of eminent domain, and there is no legal question that governments can take private property. It’s in the fifth amendment to the constitution.

    The issue I’m highlighting here is what constitutes public use. People can agree, whether it is property owners in the path of a conduit for energy, environmental advocates, or everyday citizens like those that weighed in on the Iowa Utilities Board site about the Dakota Access pipeline, that private companies should not be able to initiate eminent domain proceedings. Unless more cases advance to challenge Kelo, these Canadian and Texas companies want and can legally get easements on private property.

    I would argue that landowners in the path of these projects need environmental advocates’ help more than the reverse as long as the issue is about the commons and how it is used. If you just want to keep your land at any cost, you are entitled to your feelings, but the constitution says government, and with Kelo, private businesses can take it away from you.

    Thanks again for reading.

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  5. Miz Swanson says:

    Paul,
    I noticed here that you responded and you are correct, the government can take land by eminent domain but who is the government but the few chosen to speak for the rest of us. In this instance, the people do not want these transmission projects.
    Just because Iowa has great wind does not mean that we have to give up all that we have worked hard for in order to supply the energy needs of distant metro areas.
    Per capita Iowa already leads in wind generation. There are 48,000 industrial wind turbines in the US and absolutely none of them are offshore even though these areas have greater wind capacity and are far closer to the cities that need them.
    This is generally because people that live on waterfronts do not want to look at them.
    We have 10 turbines right out our bedroom window. At night we can see the 100-plus wind turbines that are 50-miles south of here as their red lights blink off and on in endless unison.
    Clean Line Energy Partners wants a 145′-200′ easement through the length of our farm to erect a 150 ft power line. They want 500 miles of this, every inch on private property and many times right down the middle of farm fields. This land is just not where we live but our business and our retirement investment.
    Will this power line mess with our GPS? likely Will it complicate aerial spraying? certainly. Will it mess with our health? Well, no one is absolutely certain that it won’t hurt us but they are willing to risk it.
    In Illinois the ICC “approved” the Rock Island Clean Line but did not give them the right of eminent domain. They have about 1% of the voluntary easements they need. In Iowa after a year and a half they have only 12% of the voluntary easements they need. In Lincoln County South Dakota where wind developers are proposing to build a wind farm to hook to RICL, they have been refused by local government and citizens. RICL has no customers. Why would we build the line?
    The legislators we have been working with understand that the laws for acquiring land by eminent domain for a “utility” are largely stacked in the utilities’ favor.
    This country is ruled by the people and the people of Iowa have said No.

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