Pipeline Builders Abuse Eminent Domain
Across the country activists are speaking out against the use of eminent domain to construct natural-gas pipelines. Some have climbed trees and refused to come down. The agency in charge of approving these pipelines—the Federal Energy Regulatory Commission, or FERC—is reconsidering how eminent domain, by which the government legally expropriates private property for public purposes, is used.
While we stand with those who stand for individual rights—and enjoy a good tree-climb—protests like these can only go so far. The U.S. is a country of laws, and if a court rules that eminent domain can be used to construct a pipeline, then Americans must respect that ruling. But judges haven’t actually issued many such rulings. Right now FERC presides over a system that strips property owners of their rights without courts getting involved.
When FERC approves the use of eminent domain to build a pipeline, landowners have the right to appeal to a federal court only after they have asked the agency to reconsider its decision and had their request denied. But FERC has developed the habit of granting these requests so that it can draw out the time it spends “thinking” about them. While FERC dawdles, the pipeline companies use eminent domain to snatch thousands of landowners’ properties free from judicial review.
Furthermore, FERC’s approval comes with eminent domain authority, allowing pipeline companies to seize property before seeking other necessary approvals. In one instance, a company seized part of a Pennsylvania family’s property to build a FERC-authorized pipeline only to have the project fall apart when officials in New York refused to grant a permit to build another part of the pipeline. The taking, which also involved cutting down more than 500 of the family’s trees, was ultimately for nothing.
As rotten as these procedural shenanigans are, FERC is guilty of a more consequential deception. Under current law, the agency can approve a pipeline without telling property owners that decisions will be effectively unreviewable unless they file an immediate appeal. When states have behaved this way, federal courts have deemed it unconstitutional. Yet FERC continues to harm eminent-domain victims by failing to inform them how to protect their rights.
No one’s property should be taken without a real chance at judicial review. Property owners who go to court don’t always win, but some do. Property owners in both Pennsylvania and Texas have persuaded state judges to reject pipeline-related property seizures in recent years. Perhaps property owners who’ve been subject to eminent domain expropriations by FERC-approved pipelines would find similar success. The agency should afford them the chance to find out.
Mr. McNamara is a senior attorney with the Institute for Justice. Mr. Bookbinder is chief counsel for the Niskanen Center.