The "other" pipeline: hijacking the 'public interest'
January 15, 2015 6:58 AM   Subscribe

How do we, the public, decide what's in the public interest? Specifically, in the context of eminent domain: In 2005, in Kelo v. City of New London, the concept of eminent domain, or taking of private property to benefit public interest, was expanded to allow governments to take private property and turn it over to private commercial interests, if deemed to benefit the public. Although some states later passed legislation designed to curb abuses of this power, the state of Virginia is now taking it to the next level.

In the years before anyone was taking fracking seriously, and when there was little evidence as to its impact, lobbyists for Dominion Power had the General Assembly pass a bill that essentially gives Dominion a private, streamlined eminent domain authority. Dominion has recently moved to exploit that advantage with a pipeline through some of the loveliest, most fragile areas of the state. Today, as the General Assemby opens, it will consider and probably pass HB 1475, designed to eliminate any bothersome landowners from the process. It reads as follows: "The authorization and encouragement of the expansion of natural gas infrastructure and the promotion of the use of natural gas are declared to be in the public interest."
posted by mmiddle (39 comments total) 10 users marked this as a favorite
 
I Pledge Allegiance to the flag
of the United Corporations of America
and to the Markets
for which it stands,
one Demographic under Control,
indivisible,
with liberty and justice for none.
posted by tommasz at 7:33 AM on January 15, 2015 [9 favorites]


What kills me is how the CT property was never developed. A lesson learned, I hope hope hope.
posted by Melismata at 7:36 AM on January 15, 2015 [6 favorites]


It smells like kleptocracy in here.
posted by Steely-eyed Missile Man at 7:56 AM on January 15, 2015 [2 favorites]


Um, sidebar...sort of...

Did DS9 exist before or after this Dominion company? Trying to figure out who inspired whom here...
posted by Mooseli at 8:03 AM on January 15, 2015




The empty land on the New London waterfront is sickening, and the last thing we need is more fossil fuel infrastructure. But...

If you think things like roads, rail lines and aqueducts serve the public interest, then natural gas pipelines must, too. Pipelines transport a useful fuel that heats and lights homes and businesses. It also pollutes the air, but far less than the alternatives (There are already plenty of railroads to being West Virginia coal to Virginia). So lawmakers supporting natural gas have some rational basis for their decision. Maybe the state was hijacked by the energy company, or perhaps they found acting through a private firm expeditious, since it insulates lawmakers from their decisions. The mere fact that one party is going to get rich doesn't mean eminent domain is uncalled for. If you build a park, the abutting landowners are going to do well. Build a school, and nearby land values will go up. There are several ways to address this, ranging from transparent decision-making and strong regulation to elimination of private property.
posted by fitnr at 8:59 AM on January 15, 2015 [3 favorites]


WHAT? It seems like every statewide election in the past few years here in Virginia has featured some constitutional amendment to eliminate eminent domain for private benefit, and IIRC they all passed. How is this even possible?
posted by indubitable at 9:17 AM on January 15, 2015




Granting eminent domain power to utilities or for utilities and pipelines isn't new in the slightest. These laws go back a century (TX has had a law giving eminent domain to oil companies since 1917, for example).

What was notable about Kelo wasn't that private property could be handed over to a private company, but that "increasing tax revenue" could be used as an acceptable public purpose in exercising eminent domain.
posted by jpe at 9:45 AM on January 15, 2015 [2 favorites]


I have to tell you that the federal government already thinks this.

The Army Corps regulates development in wetlands. if you want to put a wal mart in a marsh, you have to get a permit. there are exemptions for Agriculture and Silviculture, and shortcuts for utilities.

One shortcut is called Nationwide Permit 12, for linear facilities. It was written for power lines and associated right of ways, but the Army Corps has been permitting Tar Sands Pipelines with it, including one across the drinking water supply of Mobile, AL.

In their arguments, the Corps definitely states that private pipeline companies are equivalent to public utilities.

The Good News is that many judges tend not to agree with legislatures and executive branch folks.
posted by eustatic at 9:46 AM on January 15, 2015 [1 favorite]


This issue could help democrats in the fall state assembly elections if voter outrage at the pipeline translates into more democratic votes in the republican areas affected by the pipeline.
posted by humanfont at 9:48 AM on January 15, 2015


fitnr: If you think things like roads, rail lines and aqueducts serve the public interest, then natural gas pipelines must, too.
Yes, duh. But there's a difference between "energy sources serve public interest" and "a power utility should be granted eminent domain for future expansions, carte blanche."

No one here, nor in the links, is suggesting that gas pipelines shouldn't ever be made. This thread is about the controversy of whether or not we the people (in its most literal sense) have the right to enter into the eminent domain discussion.
posted by IAmBroom at 10:32 AM on January 15, 2015 [1 favorite]


It's hard not to write extravagant imaginings about the future of eminent domain. (Blood transfusions are in the public interest! So I'm using eminent domain to SUCK YOUR BLOOD.)

But I tend to think that Kelo was rightly decided, largely because the precedent, in Hawaii, dispossessed the major landlords, effectively breaking a monopoly on real estate. If economic justice is in the public interest (and it is) then funding the government probably is, too. And for that, you need revenue.

It's not eminent domain that is broken: it's the political system that uses it more often for corporate advantage than public good. So let's fix that.
posted by anotherpanacea at 10:34 AM on January 15, 2015 [1 favorite]


anotherpanacea: It's not eminent domain that is broken: it's the political system that uses it more often for corporate advantage than public good. So let's fix that.
Wait, so: don't fix the system that makes eminent domain; fix the government rules that use the sytem that makes eminent domain? What's the distinction here?
posted by IAmBroom at 10:38 AM on January 15, 2015


Funnily enough I thought this was about our area, but no, we also have a different unwanted pipeline going through a National Forest in Southwest VA too.
posted by idb at 10:44 AM on January 15, 2015


thread is about the controversy of whether or not we the people (in its most literal sense) have the right to enter into the eminent domain discussion.

We do via our elected representatives, the same way most policy questions are decided.
posted by jpe at 10:53 AM on January 15, 2015


Wait, so: don't fix the system that makes eminent domain; fix the government rules that use the sytem that makes eminent domain? What's the distinction here?

If you have properly democratic rule, eminent domain gets used for the real public interest. We sacrifice private profits for public intersts. If you have perverted semi-democratic semi-corporatist rule, eminent domain gets used for some public goods and for some rent-seeking and even kleptocratic interests to further secure profits for themselves.

I think it's fine to say: so long as we're going to live in a corporatist republic, we should have limited eminent domain laws. I just think it's mistaking a symptom for a cause, and frankly I don't think you can successfully limit eminent domain without broaching the question of oversized commercial interests dominating politics, especially at the state and local levels where most of the eminent domain abuse occurs.
posted by anotherpanacea at 10:54 AM on January 15, 2015 [4 favorites]


I thought that New London case was a genuinely bad decision. Citizens United treating corporations as people and other decisions really convince me that the US is going to the (running) dogs. Thius is why I stay in bed with the covers over my head. Nyah, nyah, nyah, you can't see me.
posted by theora55 at 11:26 AM on January 15, 2015 [1 favorite]


I'm a little bit confused by this post. At the outset, it misstates the holding and import of Kelo. As jpe mentioned, the Court in Kelo was working through a string of cases that all kind of buzzed around this area of 'public use' and what is a legitimate governmental purpose. Kelo certainly captured the imagination from a political perspective, but a lot of the public hand-wringing over it failed to appreciate the landscape that existed before Kelo was not much different than it was after Kelo. On the contrary, the public's reaction was such that a bunch of states passed laws after Kelo against eminent domain such one can legitimately argue that the net effect Kelo was a more weakened power of eminent domain nationally.

And those new laws also answer the question in this post simply:

Q: "How do we, the public, decide what's in the public interest? "
A: Simply, through our legislative bodies. There's not much magic to it beyod that. We vote in elections and put people in office to pass laws to decide what's in the public interest. After Kelo, several states cabined the power through legislative actions. Others didn't.

If this is a post about Kelo and eminent domain, the topic is fairly straight-forward. If this is really about the evil Keystone Pipeline, then ruminating about Kelo and eminent domain doesn't advance the argument in any respect.
posted by dios at 11:37 AM on January 15, 2015 [2 favorites]


thread is about the controversy of whether or not we the people (in its most literal sense) have the right to enter into the eminent domain discussion.

We do via our elected representatives, the same way most policy questions are decided.


No. Our elected representatives are, collectively, the single most influential voice in public policy, but there has long been a role for participation by private citizens. For example, the requirement (what has happened to it??) for an Environmental Impact Statement, proposing and analyzing various scenarios, including a no-action scenario. This is not about eminent domain in the abstract, it's about how it is applied, and whose interests are addressed. Preemption by statute eliminates any discussion, much less application to a particular situation.
posted by mmiddle at 11:41 AM on January 15, 2015 [2 favorites]


Citizens United treating corporations as people

Citizens United is not novel in that regard, though an alarming portion of this country seems to think Citizens United created this concept. We have an enormous United States Code a.k.a. our federal statutory law. It would fill up a giant bookcase all printed out. The very first statute in the entire Code is "1 U.S. Code § 1 - Words denoting number, gender, and so forth". In that, it states:
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
Which means that when you are reading the volumes upon volumes of federal laws, everything that applies to any "person" applies to corporations. Our federal law has treated corporations as persons in statute since 1947.

Since as far back as 1819, the Supreme Court has recognized that corporations has the same rights as people. Citizen United may be wrong for lots of reasons. But "treating corporations as people" is not something new or contrary to existing law; it was in line with a vast body of law.

I'm not trying to call you out on it, but it underscores my point above about Kelo. Both of these cases became famous/notorious because of the political hub-bub about them. And remarkably the common understanding of what these cases "did" is actually divergent from what they actually *did*. Kelo didn't invent eminent domain as many people seem to think; Citizens United didn't invent corporate personhood.
posted by dios at 11:54 AM on January 15, 2015


If you think things like roads, rail lines and aqueducts serve the public interest, then natural gas pipelines must, too

Natural gas lines cost more to zigzag around obstacles, but it's only a matter of cost.

Rail lines often have to force their way through obstacles because a track can only curve or climb so much. Same issue with aqueducts.
posted by ocschwar at 12:20 PM on January 15, 2015 [1 favorite]


(And I should add that oil pipelines can too, and Keystone is a prime example. It's routed carefully to avoid any Indian reservation land, since Indian rights do trump eminent domain.)
posted by ocschwar at 12:22 PM on January 15, 2015 [2 favorites]


I thought that New London case was a genuinely bad decision.

It's easier if you don't accept the right-wing spin that it's about giving stuff to corporations. It's about urban renewal programs, which (almost) inevitably have an endgame that returns land to private ownership. The liberal justices, who like urban renewal programs, voted to keep urban renewal programs. The conservative ones, who don't like urban renewal programs, voted to make them unconstitutional.

I don't think many people expected the prohibition on politically-relevant publications that were near elections, which was what was notionally at stake in Citizens United, to be upheld -- banning a large class of political speech is hard to square with the Constitution. In some ways it's the flipside of those states that now have same-sex marriage because they banned it, and had the banned overturned. Overturning a provision that was almost certainly unconstitutional allowed the conservative justices to create a knock-on effect that actively created new policy, just like overturning a ban with no rational purpose allowed judges to create same-sex marriage.
posted by ROU_Xenophobe at 12:24 PM on January 15, 2015


The US military geosurveyed the entire planet using ground penetrating radar. Then Rio Tinto got the data for a fee or free, and is given Apache Indian lands for a huge lode of copper.

I call this a violation of The Constitution under unlawful search and seizure. They call it how business is done. Rio Tinto is an Australian company, it does not clean up after digging and leeching for profit. They misbehave and misrepresent the facts of their doings in my state as a matter of course and play environmental angels.

We have submitted to the reality of property, and viability of emvironment loss, for so long. What was "your military" is preparing for damage control, resulting from outrage over environmental abuse. They are going to be working for the corporate side, protcting "infrastructure," built on what was, your lands.
posted by Oyéah at 12:25 PM on January 15, 2015



Since as far back as 1819, the Supreme Court has recognized that corporations has the same rights as people. Citizen United may be wrong for lots of reasons. But "treating corporations as people" is not something new or contrary to existing law; it was in line with a vast body of law.


In 1819, limited liability was not a prevalent thing, and the term "corporation," meant any group of people that allocates responsibilities among officers and holds meetings under rules of order (which at the time meant basically any group of Americans larger than 6.) As late as the 1890's, limited liability was a new and suspect thing, which Gilbert and Sullivan mocked in two of their musicals.

The courts held that anything you had the right to do as an indivual, you had a right to incorporate with others and do together. However, as an individual, you do not have the right to limit the liability you incur for your actions. As a limited liability company, you do. THAT is where the line should be drawn about the rights of corporations.
posted by ocschwar at 12:26 PM on January 15, 2015 [3 favorites]


Supposedly we elect legislators to work for the public interest, but now 'cmon who buys those guys?
posted by Oyéah at 12:28 PM on January 15, 2015


However, as an individual, you do not have the right to limit the liability you incur for your actions. As a limited liability company, you do. THAT is where the line should be drawn about the rights of corporations.

Which is all fine and dandy, and has absolutely nothing at all whatsoever to do with Citizens United which was the topic being addressed.
posted by dios at 1:16 PM on January 15, 2015 [2 favorites]


Thank you, anotherpanacea. Your rephrasing/explanation makes a lot more sense.

I still hold that allowing the elected officials to decide "public interest" in regards to eminent domain is not sufficient involvement. Whole industries and communities can be destroyed by the election of 1-term corrupt city officials; when the subject at hand is the actual primary home of a family, we traditionally rely upon public hearings (at the very least) to minimize such chances. Laws that involvement of the populace in such decisions do in fact overturn traditional safeguards, elections notwithstanding.
posted by IAmBroom at 1:22 PM on January 15, 2015 [2 favorites]


If you have properly democratic rule, eminent domain gets used for the real public interest.

You're just using "properly democratic rule" to mean "policies I like."
posted by jpe at 4:38 PM on January 15, 2015 [3 favorites]


Eminent domain for the benefit of private corporations was stricken down by the Colorado Supreme Court. For years, the state and local governments thought that they could take property and turn it over to private entities until someone challenged that concept. The Colorado Supreme Court said that eminent domain does not contemplate that use. Looking at Virginia's statutes and constitution, that argument could be useful. Now for the poor person who has to pay for the fight.

It is the worst use of government power and one of the reasons for the revolt against the British which is why there is provision in the Bill of Rights about compensation for the taking of property. Unfortunately, people think it is okay when it is done to further something that "they" are okay with happening, urban renewal for example. I am a firm believer that government should never be allowed to condemn anything under that theory unless it is to build a government building, road or the like.

So who gets to take the fight to the problem?
posted by OhSusannah at 6:32 PM on January 15, 2015


This is tailor-made for the Va office of the Southern Environmental Law Center, which has shown no interest so far. I hope they are just waiting for the bill to pass so that it will be ripe for litigation.
posted by mmiddle at 7:07 PM on January 15, 2015


You're just using "properly democratic rule" to mean "policies I like."

Not really. I'm an upper-middle class white male. I like the policies we have currently. They work very well for me.

Fuller democratic engagement would likely lead to a lot of policies I didn't like as much. Some of the things people want are just dumb, and some are downright evil, and I don't just mean the loonies on the left and right.

But the way municipal and state level politics work in most cities makes it almost impossible to exercise anything like democratic accountability over the policies themselves: machine politics picks the local candidates, and the state level representatives are gerrymandered. Eminent domain is a pretty boring instance of that, but my basic take is that the rent-seeking is too damn high most places.
posted by anotherpanacea at 4:30 AM on January 16, 2015 [1 favorite]


when the subject at hand is the actual primary home of a family, we traditionally rely upon public hearings (at the very least) to minimize such chances. Laws that involvement of the populace in such decisions do in fact overturn traditional safeguards, elections notwithstanding.

You know that families are paid for their homes, right? They can go out and buy another one. I wouldn't really want to have to go to a public hearing and argue for my right to keep my home, and I wouldn't trust the results. Presumably the appealing and popular families would get support, and the unpopular and non-majority families wouldn't. That's no good: there has to be a process, and I'd much rather a process that ignored the desires of particular property-owners and put citizens in a room to argue about the public good to be achieved by the project than to consider the pitiful state of some group of families.

Once we start treating family homes as sacred, we end up with a process that's actually much worse. Because most families don't own their homes, and most real estate isn't a family home at all. So stacking the deck in favor of the landowner (to protect families) is mostly going to stack the deck in favor of the landlord (and protect wealth.) That'd be worse than what we have now, it seems to me.

Ignore Kelo for a second: what do you think the policy should be for when the government builds roads and bridges? What about dams and railroads? Do you think every family displaced by the Tennessee Valley Authority ought to have gotten a public hearing?

With a big project like a dam, a single failure of eminent domain would prevent the project. You can't flood all the houses except one.
posted by anotherpanacea at 5:13 AM on January 16, 2015


I think there's a difference between providing water and economic development to an entire region of the country and one company with vague plans to open another location.
posted by Melismata at 9:39 AM on January 16, 2015


anotherpanacea: Do you think every family displaced by the Tennessee Valley Authority ought to have gotten a public hearing?
They did.
posted by IAmBroom at 10:48 AM on January 16, 2015


I don't think they did.
posted by anotherpanacea at 12:17 PM on January 16, 2015


With a big project like a dam, a single failure of eminent domain would prevent the project. You can't flood all the houses except one.

Gas lines are easy to reroute around holdouts and obstacles. If you need eminent domain to get a gas line put in, opposition to your line has to be unanimous through a huge region.
posted by ocschwar at 3:14 PM on January 16, 2015


anotherpanacea: I don't think they did.
OK, finally got the ability to read that link (stupid broken home computer/work firewall). Nothing in it suggests the family wasn't given the chance to have a public hearing first.

Basically, your link suggests only one family played chicken with the government. Never a good idea. And not relevant. One family shouldn't get to stop a project benefitting millions, because they don't want to move.
posted by IAmBroom at 4:27 PM on January 24, 2015


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