But what about that eminent domain thing? (Eminent Domain Part 2)

January 29, 2009 - 2:10pm -- Anonymous

Renewable energy has been a major factor in the resurgence of energy corridor acquisitions. The nature of renewable energy means there is a need to link the energy source (often in remote, not-very-populated areas) to the energy demand (in highly populated areas). As advocates for wind energy, transmission can be a significant hurdle in successful development of wind farms.

Yesterday I attended a presentation on some of the legal issues that arise when eminent domain is used for energy corridors. The presenters focused on two areas. First, the issues surrounding condemnation of property that is already dedicated to a public use (a.k.a if there are overhead transmission lines, can there also be underground pipes?). Second, what are the rules regarding admitting statements of fear by local residents into court hearings about energy corridors?

In the previous post we learned about easements and when the government is allowed to exercise its eminent domain power and take the use of a piece of land without the owner's consent so long as the landowner is compensated.

Now you may be wondering about how private companies build and own transmission lines. Many private companies who serve the public good have been authorized by the legislature to exercise the power of eminent domain when:

  • direct purchase negotiations with private landowners have failed and
  • the company can demonstrate the need for the land in order to serve the public.

The first issue discussed yesterday was the particular situation of using the power of eminent domain on lands that are already being used for the public good. That is, if a public utility has an easement for a sewage line under someone's property, and the electric company wants to build transmission lines in that area - can those both be achieved through the exercise of eminent domain? Possibly.

The general rule is that a private company who has been authorized to exercise general eminent domain powers cannot do so on land that has already been devoted to public use. Also known as the "prior public use doctrine".

The prior public use doctrine says that a private company must have the express authority to exercise eminent domain on land that is appropriated to and actually put to the public use, or they must have an implied authority to do (evidenced by the current owner of the land not putting that land to public use). And, as always, there are exceptions to this rule as well.

Still reading? Good for you! Don't worry if you're confused - it may be easier to understand by an example:

Annie owns a large tract of farmland directly between a number of wind farms that are in development and the closest city. The local utility company, Bower Power, approaches Annie, and using it's authorized power of eminent domain, takes an easement across her land to construct overhead high-voltage transmission lines. At the same time, the process on approving these high-voltage power lines are changed resulting in a major delay. During this delay, City Energy approaches Annie and wants to exercise its authorized power of eminent domain to acquire an easement to put their own transmission lines across her land.

According to the prior public use doctrine, City Energy should be able to obtain an easement on the same tract of land because Bower Power has not actually put that land to public use. But they were hit with unexpected delays, you say! How is that fair?

Here is where the details of prior public use doctrine will come into play. IF Bower Power can show that the property is in fact needed for the prior public use AND they are taking effective measures to apply the property to that use, the prior public use doctrine will continue to apply.

Perfect! So that's great for ... wait. Who does that help?

If Bower Power can prove both elements listed above, then City Energy cannot exercise their power of eminent domain on the property that Bower Power has control over.

There, that's not so complicated anymore. The prior public use doctrine is pretty simple once you get the hang of it. But didn't I mention an exception? I sure did. The greatest part of our legal system is the ever-present "Exception to The Rule".

There is an exception to the prior public use doctrine. It is called the consistent use exception. Even from the title I'm betting you can tell how this might work. Time for another example!

Suppose in the example above, that Bower Power was able to proceed with constructing high-voltage transmission lines with no delay. After the lines are up, Annie is approached by both City Energy and Dewer Sewer who each want an easement on the same tract of land that Bower Power has.

We already know about the public use doctrine which means that City Energy is out of luck. Bower Power put that land to the public use and City Energy was too late. But is Dewer Sewer out of luck too? That depends.

On what? The consistent use exception.

The exception to the rule in this situation says that the prior public use doctrine does not apply when the proposed use does not materially or seriously interfere with the purpose of the original use OR when the new use is consistent with the old use and they may be enjoyed at the same time.

Let's apply this exception to our example:

Dewer Sewer is interested in underground sewage pipes. The use of these pipes will not disrupt the use of Bower Power's overhead transmission lines. According to the consistent use exception, Dewer Sewer is able to exercise their right of eminent domain on the same land that Bower Power has.

Another way to imagine it is that Bower Power has a stick from Annie representing the ability to construct overhead transmission lines. Annie still has a stick representing underground pipe access in her bundle of sticks. So when City Energy and Dewer Sewer came to Annie, she had already given her overhead transmission stick away, but not her underground pipe stick. Lucky for Dewer Sewer!

To be continued....