Involuntary Cotenants: Eminent Domain and Energy & Communications Infrastructure Growth

Abstract

The spread of renewable energy mandates, new discoveries of unconventional oil and gas, and the need to harden and upgrade telecommunications infrastructure will lead to expansions in large infrastructure easements over the next decade. Many of these easements will be taken by eminent domain. In this paper we examine the problems posed by this involuntary creation of co-ownership of land. Existing eminent domain laws are insufficient to address the problems created because they allow the courts to vary only one term: price. Given difficulty in pricing many of the other terms to the easements (e.g. indemnification agreements for landowners, controlling impacts on hunting leases, or compliance efforts to control invasive species), reforms are necessary to allow courts to substitute for the bargaining process that eminent domain short circuits.

Keywords: eminent domain, electric utilities, pipelines, transmission lines, easements, cotenancy