Environmentalists are starting to use the same legal tactics they use to halt the construction of oil and natural gas pipelines against clean energy projects like wind farms, cutting into consumer choices for clean energy.
For years, environmentalists of all stripes have tried to constrain the growth of fossil-fuel use in a variety of ways, but not always successfully. More recently, however, some anti-development activists have effectively slowed, and even undermined, the ability of energy developers to construct pipelines across parts of the United States.
Increasingly, legal arguments against the improper use of eminent domain — the longstanding legal tradition that allows governments to force the sale of private property for public use — are gaining purchase. For activists who are largely anti-development, it’s a left-right political marriage made in heaven: grassroots defenders of private property rights lining up on the same side as oil-company opponents against developers of clean energy infrastructure.
Unfortunately for those who want to use more clean power, eminent domain lawsuits can be a dual-use weapon, available to both critics of fossil fuels and those who are anti-wind power. This means that infrastructure opponents will increasingly use — and misuse — laws originally intended to protect private property in order to strangle a growing market for renewable energy. This willingness to sacrifice clean energy infrastructure in the name of environmentalism is wrongheaded in the extreme.
The Fifth Amendment to the U.S. Constitution allows federal and state governments to take private property for “public use” — public parks and roadways being prime examples — as long as the government offers owners “just compensation” for their property. Criticism of the use of eminent domain remained dormant for decades until a 2005 Supreme Court case, Kelo v. City of New London, which broadened governments’ ability to force property owners to sell their property to developers.
The Kelo decision expanded the legal rationale for eminent domain to a point where states like Texas and Iowa began passing their own laws to strengthen the protection of private landowners against government takings of property. Today, these same laws have emerged in lawsuits against the development of energy infrastructure.
Developers of both the Atlantic Coast natural gas pipeline in Virginia and North Carolina and the Penn East gas pipeline in Pennsylvania, for instance, have fought legal actions from landowners who argue that state governments are abusing the power of eminent domain. They claim that instead of using eminent domain to help the broader public, governments are using it to benefit energy companies.
In Oklahoma, legal fights have slowed the rollout of critical transmission lines and wind farms that could power other parts of the United States with emissions-free electricity. Wind Catcher — a 2-gigawatt, 300,000-acre wind farm planned for the Oklahoma panhandle — had to be scrapped after oil and gas opponents began to campaign against it, stiffening the spines of property owners in the path of the mega-wind farm’s transmission lines and making the project too tortuous and risky for investors.
Similarly, in Iowa, the legislature banned the use of eminent domain for high-voltage transmission lines carrying wind energy across the state into Illinois. The state government would have used eminent domain to obtain rights of way from reluctant property owners in order to build these lines.
So far, the Atlantic Coast and Penn East pipelines are still under construction. However, many interstate wind projects proposed earlier in the decade, like Wind Catcher, have either been canceled or are going nowhere. It’s becoming increasingly clear that the most visceral opponents aren’t interested in improving siting issues, but rather in stopping all energy infrastructure — whether it is used for fossil fuel or renewables — from being built.
The turning of eminent-domain arguments against clean energy infrastructure is one of many ironies of the current political era. There is little doubt that national anti-development forces will continue to find states and localities across the country whose desire to block local infrastructure happens to match the larger, national goals of some environmental organizations.
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William Murray is federal energy policy manager with the R Street Institute.
