Are Property Rights a Climate Action Tool?

WHY-WHY-NOT-MELBOURNE2-4_0For many, protecting property rights is high on the list of priorities. It’s the American way, shouldn’t it be so? A related and perhaps better question is whether climate advocates should use eminent domain as a tool to advocate against energy related projects.

Answers are elusive.

When the U.S. Supreme Court decided in Kelo v. City of New London that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible public use under the Takings Clause of the Fifth Amendment, property rights advocates were up in arms. There is a role for eminent domain when governments initiate the process, but private developers should have no such rights, they said.

Kelo may mean that when U.S. infrastructure projects are developed by foreign corporations (TransCanada Corporation’s Keystone XL Pipeline) or by U.S. corporations (Energy Transfer Partner’s Dakota Access Pipeline or Clean Line Energy Partners’ Rock Island Clean Line), foreign or private domestic entities have the right to initiate condemnation process and take easements and other property to build their projects.

In a March 2 article in the Des Moines Register, William Petroski reported, “a majority of Iowans support plans for a crude oil pipeline in Iowa and a wind electricity transmission line project, but they overwhelmingly oppose the use of eminent domain for both projects.”

Politicians have argued that these projects create jobs, decidedly temporary ones, and in today’s economy people should accept such jobs, implying they should also cede eminent domain rights to U.S. or foreign corporations. This couldn’t have been clearer than the Keystone XL Pipeline bill passed in the U.S. Congress, vetoed by President Obama.

Kelo is not without emerging challenges.

On Feb. 18, the Iowa Supreme Court heard oral arguments in Clarke County Reservoir Commission v. Edwin D. and Deloris A. Robins Revocable Trust. The case is an appeal of an April 8, 2014 lower court decision wherein “Judge Sherman W. Phipps of the Fifth Judicial District of Iowa ruled in favor of CCRC’s ongoing Squaw Creek Watershed project, confirming it is for a public use, public purpose or public improvement as defined in the Iowa Code,” according to Amy Hansen of the Osceola Sentinel-Tribune. Developers seek to make a recreational lake much larger than the size required to serve water needs for the community to enhance property values as they sell adjacent lots.

Whatever the outcome of challenges to the Kelo decision, climate advocates are damned if they do and damned if they don’t regarding use of eminent domain as a tool. The contrast between the Rock Island Clean Line and the Dakota Access Pipeline exemplifies the problem.

On Aug. 20, 2014 while on the Great March for Climate Action, David Osterberg of the Iowa Policy Project said Iowa needed a way to get wind-generated electricity out of western Iowa to markets. His view is not unique among climate action advocates. The Rock Island Clean Line offers one such solution, but some property owners along the proposed route won’t allow an easement voluntarily. Osterberg said the Rock Island Clean Line wasn’t perfect, but it did offer a solution to shipping electricity to markets. The implication is that eminent domain may have to be used by a Texas company to build the project, although Osterberg did not say that specifically.

Use of eminent domain to stop the Dakota Access Pipeline is favored by climate action advocates. Because Bakken Oil is dirty, advocates seek to obstruct access to market through Iowa. Eminent domain has made unlikely partners in the Iowa legislature, where Senator Rob Hogg, who has given more than 100 presentations for The Climate Reality Project founded by Al Gore and is author of America’s Climate Century, began partnering with Rep. Bobby Kaufmann, a crop and livestock farmer and small business operator who is also a member of the Farm Bureau and National Rifle Association, to oppose the Keystone XL Pipeline on eminent domain grounds.

As the Iowa Utilities Board evaluates the proposal for the Dakota Access pipeline, eminent domain has more traction than the argument that fossil fuels should be left in the ground because of their contribution to anthropogenic climate change. Climate action advocates favor the latter argument, but will support the former.

Property rights advocates like Kaufmann are unlikely to go both ways on the eminent domain issue.

“The Bakken (Dakota Access) Pipeline and the Rock Island Clean Line should pick out baby names and choose a honeymoon destination, because the two issues just got married,” said Kaufmann in a Jan. 31 interview with the Solon Economist. “You’ve got two different companies that want to ship two versions of energy. They’re both private Texas companies and both want to ship a product out of our state without allowing anyone in our state to tap into it.”

Use of eminent domain hinges upon “public use.” Set aside creation of a number of temporary jobs and the public use of conveyances for energy related products is elusive, especially with the Dakota Access Pipeline. In any case, corporations benefit more than people in both Iowa projects and with the Keystone XL Pipeline.

Property rights can be a tool for climate action advocates, but it has been an imperfect one at best.