Whether it’s right to convey eminent domain powers to private companies is a question that deserves debate.
But overturning such uses of eminent domain has proved difficult under existing law.
Landowners found that out recently when a court dismissed their suit against the Mountain Valley Pipeline and a federal regulatory agency.
On this side of the Blue Ridge as well, questions about the reasonable use of eminent domain have bothered residents affected by construction of the Atlantic Coast Pipeline.
Three couples whose land is in the MVP’s path sued the Federal Energy Regulatory Commission and the MVP — a consortium of private energy businesses — on the grounds that FERC should not have given eminent domain powers to a private entity.
The Fifth Amendment to the U.S. Constitution declares: “No person shall be deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation.”
But by due process of law, it is deemed permissible to take private land for public purposes, such as building schools or roads. In all such cases, owners are supposed to be paid a fair price for their land.
Also by due process of law, Congress has delegated eminent domain authority to FERC for energy projects.
The plaintiffs in the MVP case argued that such delegation was overly broad, especially as the land taken was turned over to a private consortium rather than directly for public projects by a government — such as schools or roads. If Congress had given away too much authority, then all eminent domain decisions thus made were invalid, they argued.
The judge wasn’t buying it. His court wasn’t the proper place for such a dispute, he said, calling the landowners’ case “breathtaking in scope.”
U.S. District Court Judge James Boasberg said the law does indeed allow FERC to award property by eminent domain to private entities if conditions are met, including that the project constitute a “public convenience and necessity.”
In another lawsuit, the U.S. Circuit Court of Appeals already had ruled that the transfer of natural gas through the pipeline was a matter of public need.
In still another case, a federal court ruled that the pipeline company was permitted to take land and start building even before the owners were paid. The owners involved in the FERC jurisdiction dispute were among those affected.
The discussion we would like to see would be based on these questions: Does the principle of eminent domain meet the high standards originally set for it as a means of balancing private property rights with public necessity? Or has it been distorted by a succession of laws, regulatory decisions and court rulings favoring big government or big business at the expense of individual rights?
More and more, we see the latter. But deep reform can’t be achieved piecemeal through court challenges, which nonetheless seem to be the only avenue left to property owners. We see no inclination among lawmakers to tackle the questions or to institute reform on their own initiative.