Susette Kelo owned a little pink house with a great view of the water.
Then the pharmaceutical company Pfizer built a plant nearby. Sensing economic development potential, the city of New London, Connecticut, decided to condemn Kelo’s house and turn the property over to a developer to do something else with that, ideally, would generate more tax revenue for the city.
Kelo wanted to keep her little pink house. So she sued. The case made it all the way to the U.S. Supreme Court. At issue was more than Kelo’s room with a view. Instead, the case turned on a high-minded constitutional question, the property part of the Fifth Amendment’s rules on life, liberty and property, specifically the prohibition that “nor shall private property be taken for public use, without just compensation.”
Condemning someone’s land for a school or a road or some other “public use,” that’s clearly allowed. But is it constitutional to condemn one person’s land to turn it over to someone else simply because they might do something “better” with it?
In 2005, the U.S. Supreme Court, by a vote of 5-4, said yes. It is constitutional for a government to condemn land and turn it over to a private developer in the name of “economic development.”
The ruling outraged those whose primary concern is property rights, and so they pushed back. Since then, at least 44 states have passed some kind of legislation to restrict or prohibit outright the condemnation of private land for privately-owned “economic development” purposes.
In Virginia, that took the form of an amendment to the state constitution that voters approved in 2012 with 74 percent of the vote. It passed overwhelmingly in just not every city and county in the state, but also won in almost every precinct – from the most liberal to the most conservative. (A few precincts in Portsmouth appear to have been the only hold-outs.)
That amendment doesn’t just prohibit condemnation for anything other than a clear public use, it goes on to declare that the right to private property is “fundamental” — a legal term that harkens back to the founders’ concern of certain inalienable rights that aren’t simply granted by government but exist before government:
“That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use . . . “
However, the amendment goes to carve out out an important clarification for what constitutes “public use.” Specifically, it says:
“A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services.”
Put another way, utilities and railroads may be privately-owned but they are as important as schools and roads, so they, too, are allowed to exercise the government’s mighty power to override the “fundamental” right to private property.
In fact, thanks to an earlier state law – passed in 2004 with only scant opposition – natural gas companies, in particular, not only have the right to get private property condemned for a pipeline, they have the right “to enter upon property to make examinations, tests, land auger borings, appraisals and surveys” to decide whether a pipeline should be built there at all. Even before the federal authorities who have to issue the ultimate permits have decided there is a “public need” for a pipeline.
From Susette Kelo’s little pink house, we now come to all the houses, of any color, that happen to be along the path of one of the proposed natural gas pipelines that might snake through Virginia.
Representatives for the Atlantic Coast Pipeline have already started knocking on doors in Augusta County, and perhaps elsewhere, to seek permission to start surveying. If landowners say no, as many have, they wind up in court, where the outcome is pre-ordained. The law already says the gas company can come on your land; so follow the law. Next.
Some landowners in Nelson County have sued in federal court, challenging whether the state law allowing gas companies to walk over private land without an owners’ consent is constitutional under the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” a clause more commonly thought of in terms of police searches. It’s an interesting question, although getting a law declared unconstitutional is a high bar to hurdle.
Here’s another, slightly different, question we throw out for public discussion: Should the law recognize all utilities as being the same, or should it recognize differences?
For instance, if you want electricity, you really only have one choice: To buy it from whoever your power company happens to be. Yeah, yeah, you can go off the grid and generate your own, but let’s be realistic here. Most people just want to buy their electricity. The catch is, you can’t really shop around decide to buy your power from Pacific Gas and Electric instead of American Electric Power. In that case, the utility is a monopoly – and since we all need electricity, it makes sense that the power company can seek to have land condemned to string up a power line. Otherwise, we might all go dark just because some hold-out up in the hills decided to say “no.”
However, are natural gas companies a different sort of utility that merits a different standard? Here, there is competition – between different pipelines and ultimately different sources of energy. Yes, supplying natural gas serves a public purpose in that the economy runs on energy, but it’s also in the context of a free market where consumers can choose whether to run on natural gas or something else. Supplying food serves a public purpose, too, but we don’t give Kroger or Food Lion the power to condemn land to build a supermarket.
So why should competing pipelines have that power? Or at least the same level of power that a monopoly has? Or consider this: Should the gas company’s ability to bypass that otherwise “fundamental right” to private property and walk over someone’s land to survey and drill and whatnot come before that “public need” has been established, or should it come after?
Something you might want to ask your state legislator about if you agree.