Eminent Domain As Climate Policy: From A Target To A Potential Tool For Expanding Renewable Energy Projects

Husch Blackwell LLP

In order for renewable energy projects to gain traction on a larger scale in the United States, significant investments need to go into building the required underlying infrastructure, including a green sustainable grid across the country.

Eminent domain, the government’s right to expropriate private property for public use with just compensation, has historically been the go-to tool for the fossil fuel industry to build and expand its vast network of pipelines by obtaining the parcels of land needed to build the pipeline. Eminent domain is a controversial concept and has been a popular target for environmentalists looking to slow the expansion of the fossil fuel pipelines. Recent examples include the PennEast Pipeline, the Atlantic Coast Pipeline and the Dakota Access Pipeline.

This legal concept, however, might soon become an asset for those same climate activists looking to push renewable-friendly policies. In order to achieve the ambitious goals the Biden administration recently announced, infrastructure will need to be built to transport renewable energy from where it is produced to where it is needed. Unlike oil and gas, electricity can only be transmitted through electric transmission lines, thus the need to build interstate power lines on a national scale.

For eminent domain to be valid, the project must serve a public purpose for the community where the land is being appropriated. In the case of interstate power lines, however, the lines in question will likely be carrying energy through one state to power another destination, which limits the validity of the eminent domain argument. In comparison, companies building natural gas pipelines obtain their eminent domain authority at the federal level, through the Federal Energy Regulatory Commission. Once approved, they are granted eminent domain authority in any state they need to build through, rather than having to go through the laborious state-by-state process.

Soon enough, eminent domain policies will have to evolve to align with renewable energy policies in order for a complete overhaul of the grid system to be attainable. State and federal lawmakers will eventually have to address the issue by having to revise the definition of “public use” to account for transmission lines transporting renewable electricity.

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Husch Blackwell LLP

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