Two Significant Eminent Domain Cases to Watch

      It is not uncommon, at least in the United States, for things like incinerators, pipelines, and proposed nuclear containment sites to be located in rural areas and/or high poverty inner-city neighborhoods. Certain kinds of factories are also often kept away from middle and high income residential neighborhoods. Sites for such activities are usually chosen out of necessity and/or to contain and confine potentially dangerous materials.

Eminent Domain

            Government sometimes can play a role in getting land even if it is owned by an individual unwilling to sell. Depending on the state, government can even take land for non-governmental entities to take land, with the cooperation of governmental entities, for their particular purposes.

        The Fifth Amendment to the U.S. Constitution protects citizens against “unlawful taking” of land and property. Government can only take land for “the public use” and in regards to seizure (because of a tax lien, blight, or because of illegal activity). Public use has been a subject of some controversy. This controversy came to a particular head because of the U.S. Supreme Court’s decision in Kelo v. City of New London (545 U.S. 469). At issue in the Kelo case was whether it was lawful for the City of New London, Connecticut to take non-blighted property for “public use”. Justice John Paul Stevens, author of the Kelo opinion, wrote that it was, in fact, permissible under the public use doctrine to be able to seize land for such purposes. Stevens saw a possible “public use” for even privately developed land. For example, according to Stevens, it might resolve in higher tax revenue, which, in turn, would assist the public. Dissenters, including Antonin Scalia, charged that making such distinctions essentially tear down the distinctions between public and private usage.

        It is also important to note that courts have also understood eminent domain, as applied through the fifth amendment to be binding on states and local governments, not just the Federal government (Chicago, Burlington, and Quincy Railroad v. City of Chicago 166 US 226 (1896).  This has led various states to pass laws and ballot initiatives specifically taking action that differs from the Kelo decision.

Recent cases

        Most recently, the eminent domain issue has been at the forefront of two lawsuits involving the Keystone XL pipeline. One currently being decided Thompson et al. v. Heineman et al. (District Court, Lancaster County, Nebraska, 2013) challenges the constitutional authority of the governor of Nebraska.  Plaintiffs have alleged that Nebraska LB 1161 unlawfully vests the state’s governor with authority to “vest” associated pipeline companies with eminent domain authority.  It also challenges utilizing state funds to pay for pipeline expenses. Defendants have argued that the governor does have such authority and that expenses are permissible as long as money for expenditures, such as evaluation of lands, are reimbursed.

          Another lawsuit, in Texas, Crawford Family Farms v. TransCanada (TX Court of Appeals, Texarkana, 2013), currently being appealed to the Texas Supreme Court, challenges whether eminent domain can be used to seize land under the Texas Common Carrier Act. Specifically, Crawford alleges that TransCanada is not a Common Carrier under Texas law, since it is a foreign entity operating an oil pipeline, and, thus, is subject to the authority of Federal regulators, not just the State of Texas. So far, courts have ruled that TransCanada, working with the State of Texas, does fall within the Common Carrier Act.

Conclusion

            These cases are both worth watching as they create important distinctions in state eminent domain authority. These cases also may create important distinctions to be made with regards to state and federal interaction with respect to eminent domain authority.

 

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