Energy and Eminent Domain

61 Pages Posted: 1 Apr 2019 Last revised: 28 May 2019

See all articles by James W. Coleman

James W. Coleman

Southern Methodist University - Dedman School of Law

Alexandra B. Klass

University of Minnesota Law School

Date Written: March 7, 2019

Abstract

This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in Kelo v. City of New London in 2005 but are now under increased scrutiny. This Article evaluates why U.S. energy transport projects have become so controversial and suggests how states and the federal government should evaluate the need for eminent domain for these projects and enact appropriate reforms. We first detail the significant changes in the U.S. energy landscape that began in approximately 2007, just after the post-Kelo reforms had run their course. We then consider the potential consequences of the current backlash against eminent domain for energy transport projects. We suggest ways for policymakers, advocates, and others to reconsider the role of Kelo-style arguments in the context of energy transport projects and enact reforms that will allow critical energy projects to be built in a manner that better accommodates impacted communities and provides additional procedural rights and compensation for landowners. Such reforms can include enhanced compensation for energy project-related easements taken by eminent domain, creating a presumption in favor of limited term easements, new option rights for landowners, and expedited judicial review of public use determinations. In evaluating these reforms, we draw on foundational property theories both supporting and criticizing current judicial approaches to public use and just compensation.

Keywords: energy law, eminent domain, pipeline, power line, property law, constitutional law, just compensation, oil and gas, power transmission, takings, carbon, climate change, fracking, linear infrastructure

JEL Classification: K11, K20, K23, K32, K40, Q20, Q28, Q30, Q32, Q33, Q35, Q38, Q40, Q42, Q48, Q50, Q54, Q55, Q56, Q58

Suggested Citation

Coleman, James W. and Klass, Alexandra B., Energy and Eminent Domain (March 7, 2019). 104 Minn. L. Rev. (Forthcoming); SMU Dedman School of Law Legal Studies Research Paper No. 413. Available at SSRN: https://ssrn.com/abstract=3348630

James W. Coleman (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

HOME PAGE: http://www.law.smu.edu/professor-profiles/coleman

Alexandra B. Klass

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-625-0155 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
108
Abstract Views
567
rank
248,221
PlumX Metrics