Wednesday, May 22, 2013

Eminent Domain in the U.S.A.--Unreasonable Impairment of Individual Freedoms?

An example of eminent domain law in the United States, in which a gas company is allowed to construct a pipeline through agriculture lands in Pennsylvania on grounds of a larger public good or economic development. (Photo source:
Another example of eminent domain law in Wenling, Zhejiang province, China, in which the large public good or eminent domain in the context of road building cannot be used to displace persons.  In the United States, schools, roads, courthouses, condos, and retail outlet malls are all considered a larger public good, and thereby fall within eminent domain law (Bryant, C, "How Eminent Domain Works". Retrieved from (Photo source: ninetymilesfromtyranny.blogspot,com)
Under “eminent domain” law, the U.S. federal government can seize private property in the name of the larger public good such as providing U.S. energy, housing (including educational), and road infrastructure needs.

What is the impact of the eminent domain process on a free and democracy society? How is the larger public good defined and by who? How are special interests prevented from taking advantage of eminent domain law?

The U.S. courts determine what is deemed a larger public good. In the Kelo case for example, the U.S. Supreme Court determined that economic development is a larger public good. So pipeline development would be deemed a larger public good, and that oil and gas companies can use U.S. private land for economic development (regardless of the objections of private land owners). The issue of whether or not oil development is in the larger public good considering the global warming phenomenon is not considered with any significance. As long as special interests can establish the larger public good in the context of their developments, there is nothing stopping them from taking advantage of eminent domain law.

Eminent domain law restricts individuals freedom including property rights, and raises the question and issue as to what is a larger public good. If definition and scope of a "larger public good" favours special interests, then the eminent domain law will be detrimental to a free and democratic society. For example, a case can be made that oil and gas consumption and pipeline development due to the environmental and human impacts is overall harmful to the larger public good. Yet this viewpoint is not supported by the U.S. Supreme Court.

Research Findings

U.S. Constitution

No person… shall [have] private property taken for public use, without just compensation (U.S. Constitution, Amendment V).

Under the "just compensation" clause of the 5th Amendment the government has to pay fair market value to the property owner.

Case Law

The definition of fair market value is "the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property's good and bad attributes, would pay" United States v. Miller, 317 U.S. 369, 1943; Cornell University Law School. Fifth Amendment: An Overview. Retrieved from: Fifth Amendment.

Generally, a legislature has a right to decide how public use is defined and the definition is contained in the relevant statute authorizing the taking. Courts are deferential to a legislature’s definition as long as the exercise of eminent domain is rationally related to a conceivable public purpose (Hawaii Housing Authority v. Midkiff , 327 U.S. 546, 1984).

The U.S. Supreme Court held in Kelo that taking private property for economic development satisfies the public use requirement of the 5th Amendment even if it is a private company who ends up using the land. The Court stated economic development was a traditional government action that often benefited private actors (Kelo v. City of New London, 545 U.S. 469, 2005).


Courts throughout the United States uphold public agency condemnations for private gain on a regular basis; for example, to allow the extension of railroads, pipelines, and utilities (Calkins Brubaker, L., 2013, March 7, "Texas Landowners Take On Keystone", Calgary Herald).

Example: Texas

A common carrier owns, operates, or manages a pipeline for the transportation of crude petroleum to or for the public and the pipeline constructed on, over, or under a public road or eminent domain property (Texas Natural Resources Code §111.002, 1991).

Common carriers have the right and power of eminent domain – a common carrier may enter and condemn the land, rights-of-way, easements, and property of any person or corporation in order to construct a pipeline (Texas Natural Resources Code §111.019, 1993).

Ms. Sarah Rapchuk, FDA researcher and lawyer

Mr.  Stephen Garvey, Executive Director, Foundation for Democratic Advancement

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