The Aftermath of Takings

Abstract

Our nation will face monumental challenges as we confront crumbling infrastructure, new technologies, and climate change adaptation. Eminent domain is a powerful tool that not only impacts local neighborhoods when used for new infrastructure, but is also a tool that communities will adapt to increase their climate change resilience against rising sea levels, drought, wildfires, and other severe weather events. Lawmakers will likely employ both public and private eminent domain as we face all of these challenges concurrently, rather than successively as we have experienced infrastructure developments in the past. This Article presents a responsive and flexible approach for dealing with the aftermath of future eminent domain while protecting long-term property rights against the pernicious eminent domain issues that have arisen in the past. This article reviews our historic experience with the aftermath of private eminent domain where private redevelopment projects failed to bring the benefits promised to communities, and explores the aftermath of decommissioning old infrastructure including abandoned railroad lines, unsafe dams, unused wells and mine, and abandoned energy infrastructure, such as energy transport lines, power plants, and wind farms. This Article argues that in our future uses of eminent domain, we should avoid racial disparities and discrimination through increased scrutiny of state and local exercise of condemnation power, adequately consider environmental impacts and injustices, and learn from our past mistakes by adopting a revised structure for future eminent domain enabling new or improved infrastructure. The proposed approach for future infrastructure eminent domain actions focuses on acquiring property by fee simple title and applying the public trust doctrine for dealing with the aftermath of eminent domain actions particularly in regards to excess, unused, abandoned, or decommissioned property interests.

Keywords: aftermath, climate change, decommission, eminent domain, environmental justice, property law, property rights, public trust, takings