Eminent Domain has always been something that has fascinated me. It was brought very much to my attention when I was living in New York back in 2009, due to the bitter battle being fought over Atlantic Yards in Brooklyn. A state government agency sought to seize land from a group of landowners in order to give a developer property on which to construct Atlantic Yards, a new arena for the New Jersey Nets basketball team. The landowners alleged that the state did not have the rights to seize property to benefit a private developer. Ultimately, New York’s state supreme court ruled in the agency’s favor.
For those not familiar with the term, Eminent Domain is an action by a state to seize private property, providing compensation, but without the owner’s consent. Usually eminent domain is invoked for the building of projects fostering economic development or for public use, such as highways or public utilities. Often the government must first attempt to purchase the property before resorting to the use of eminent domain.
The most recent and largest case that has come to my attention is that of TransCanada’s attempt to invoke eminent domain in order to build an oil pipeline ranging 1,700 miles from Canada, into the US- South Dakota to the Gulf of Mexico. The company has been suing dozens of landowners, taking them to court in their various states. In an interesting twist, TransCanada as the name demonstrates, is a Canadian company, but all permits for the project have been filed through its American subsidiary, located in Omaha.
Can a foreign company even invoke eminent domain in the US? I am not sure how it would play out if the national government approved a project but if a state’s government rejected it. Nebraska’s legislature recently called a special session to discuss whether they would choose to divert the proposed route through their state due to fears that the pipeline would impact a reservoir that provides 1.5 million people with drinking water. As reported in Bloomberg BusinessWeek, according to TransCanada, “The U.S. State Department has jurisdiction over the pipeline because it crosses an international border. Any move by Nebraska to usurp that authority would be unconstitutional.” When is the Federal government able to usurp states’ rights? In past Eminent Domain cases the US Supreme Court has often deferred to the states.
Currently as I write this, thousands of protesters are circling the White House to protest this project. To invoke Eminent Domain, the government will need to show that the project will benefit the public. Interestingly, an article on Wikipedia asks why “the constitutional term ‘public use’ should not be subject to judicial interpretation, the same as other constitutional terms”. It looks like this is still a fuzzy term that it may be time to define. In this case, protesters are raising questions regarding safety and environmental impact, but the onus may be on them to prove that the pipeline will cause more harm than good (providing jobs for example). As this is an issue that may loom over the 2012 presidential race, it will be interesting to see how it plays out.
Sources
http://online.wsj.com/article/SB125547517033483565.html
http://www.reuters.com/article/2011/11/07/usa-politics-pipeline-idUSN1E7A50DH20111107
http://en.wikipedia.org/wiki/Eminent_domain
Comments