There are few issues as contentious as eminent domain. That is understandable given the bedrock importance of private property in our society and legal system, dating back to the nation’s founding. At the same time, critical infrastructure and utilities need to be built in order to connect and serve millions of Americans every day. Our collective growth is complicated. With numerous passionate voices and strongly held convictions, there are precious few resources that speak to the issue of eminent domain neutrally in order to provide information and help all parties resolve conflict and reduce informational asymmetries.
The process of eminent domain is constitutionally sanctioned—but that does not make it simple. In fact, the two requirements spelled out in the Constitution are that a taking may only occur (1) for the public use (2) when just compensation is made. These two seemingly clear prerequisites became even more complicated in 2005 with the Supreme Court ruling in Kelo v. City of New London. There, the court ruled that purely economic benefit could sufficiently satisfy the constitutional requirement for public use. That is where the modern debate began.
The public reaction to Kelo spurred an extraordinary series of legislative efforts to reform eminent domain in forty-six states in the two-year period following the decision, some, but not all, of which became law. Since this unusual wave of reform efforts, the issue has continued to bubble up in many state legislatures from time to time, as states struggle with striking the balance between public needs and private property.
Even where clear public use is outlined and compensation is offered, eminent domain can sour relationships, leading to complex litigation and long delays. Across the United States, there is a patchwork of approaches to eminent domain law and policy, built up over decades through state legislatures, court rulings, and private actions. All this complexity and contention does a disservice to both sides of the issue. Landowners often fail to receive just compensation or are otherwise mired in legal battles, and critical infrastructure is delayed or outright canceled.
There are over 20 million miles of pipes, cables, and wires located underground in the U.S. Of that figure, over 3 million miles are pipelines. Added to this, overhead telephone lines and the electric transmission and distribution infrastructure comprising the energy grid span millions of miles across the surface of farms and ranches. Still other features like highways and railroad tracks crisscross the country to connect economies, communities, and individuals. These required takings–either in full or as easements–led to loss of property ownership for American citizens while also enhancing networks for transportation, communication, energy, and commerce that lifted and connected the nation in tremendous ways. Its complicated and more must be done.
The balance is different for every project , but the framework to determine the balance needs light shone on it. Due to differences in (1) public use and authority to condemn, (2) procedure prior to suit, (3) condemnation procedure, (4) properties subject or immune to condemnation, (5) abandonment, (6) compensation and valuation, and (7) attorney’s fees, among other niche considerations, it is difficult for landowners or developers to know what to expect and be equipped to engage in a fair process. Most resources that do explain these nuances are snapshots in time and limited to a specific region. While that may be helpful for a small group of people, it does not extend resources to problem solvers across the nation and across time.
With issues as fundamental and important as property rights and public infrastructure, the need is clear that eminent domain must be elucidated. A neutral platform explaining nuances in eminent domain law and policy can serve collaborative problem solvers, lawyers and judges, legislators, and more. Armed with insight, these parties can strive forward confident in their ability to engage in a fair, transparent, and legal process. This will enable eminent domain to be avoided when possible, embraced when necessary, and ensure property owners are protected while critical infrastructure still has a path to completion.
Stay tuned to the Alliance for Innovation and Infrastructure as we at Aii tackle this behemoth and work to bridge the divide by bringing parties together, promoting infrastructure, encouraging innovation, and ultimately facilitating problem solving for the good of the American people. Subscribe to our newsletter for updates and insights as this project and others develop.
Written by Benjamin Dierker, Executive Director
The Alliance for Innovation and Infrastructure (Aii) is an independent, national research and educational organization. An innovative think tank, Aii explores the intersection of economics, law, and public policy in the areas of climate, damage prevention, energy, infrastructure, innovation, technology, and transportation.