Starting in the late 1800s, state and federal legislatures began delegating their sovereign eminent domain police powers to oil and gas pipeline companies. A growing nation needed a dependable supply of fossil fuels. Since then, even now as evidence mounts that burning fossil fuels is a threat to the well-being of the Earth itself, private property owners who do not want their land used for the construction of new oil or gas pipelines are routinely served court orders favoring the pipeline company’s demand for land.
Political resistance against the construction of new pipelines is already building. Last year, President Obama rejected the 1,179-mile Keystone XL oil pipeline, saying, “America is now a global leader when it comes to taking serious action to fight climate change. And, frankly, approving this project would have undercut that global leadership.” Further east, finding it fails to meet the state’s water quality standards, New York State recently denied issuance of a Clean Water Act Water Quality Certificate for the proposed 124-mile long Constitution Pipeline.
But there is another, even more fundamental, reason for ending the oil and gas pipeline industry’s dependence on eminent domain. In America, governments are bound to protect, not abuse, the rights of private property owners. Taking private property to support a corporate activity that is harmful to the public welfare is un-American. Amendment V to the U.S. Constitution reads, “No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” While the Constitution limits a government’s eminent domain power to the taking of private property for public use—for public roads, public schools, etc.—over the years legislatures and the courts have broadened the use of eminent domain to include the taking of private property for public purposes.
John D. Rockefeller’s Standard Oil Company was among the first to misuse public eminent domain powers to drive out competitors by building and controlling oil transportation facilities. Closer to home, Donald Trump, the billionaire real estate mogul, boasts that eminent domain is a “wonderful” tool for moving his big projects forward. It seems, with the passage of time, today’s pipeline operators and real estate moguls consider the courts business partners and have forgotten that their long-standing use of eminent domain is a public trust, not a private power. American governments, I presume, are still in the business of protecting individual private property rights. The public purpose once rendered by oil and gas corporations—and the basis for the delegation of the police power into corporate hands—has vanished.
Fossil fuels have been doomed by a vicious cycle set-off long ago. First, the delivery of low cost oil and gas to American consumers prompted an ever-increasing reliance on more fossil fuels. Then, the increased use of fossil fuels eventually released enough carbon into the atmosphere to cause serious damage to the earth’s climates. In this way, the original public purpose has morphed into a public harm that now outweighs the benefits originally promised by the delegation of eminent domain powers to oil and gas pipeline corporations.
Why should state and federal governments continue to empower pipeline operators to force private property owners, against their personal conscience and environmental concerns, to forfeit their land for a purpose that potentially puts the well-being of the Earth at risk?
If taking of private property to encourage oil and gas development was once in the national interest, that is no longer the case. Delegation of eminent domain powers to oil and gas corporations is no longer justified as a special form of corporate welfare but now violates a cardinal principle of American government—the protection of private property from government abuse.
Ronald Fraser, Ph.D., a writer in the Buffalo, New York area, is the author of a new book, America, Democracy & YOU: Where have all the Citizens Gone?