Melanie Scarborough's July 31 Close to Home piece on eminent domain invoked Arlington's name as a place where developers could run roughshod over private property rights. She also called on Virginia legislators to defend property rights, reject the Supreme Court's recent decision in Kelo v. City of New London and apply different standards to local governments than apply to states and the federal government.
What Ms. Scarborough did not note was that the Kelo decision caused the House to pass overwhelmingly a resolution declaring its "grave disapproval" of the Supreme Court decision. Some of Capitol Hill's staunchest liberals and conservatives agreed to push for stricter limits on the eminent-domain powers of local governments -- but not, of course, of the federal government.
The fine print of the energy bill passed by Congress, reported a July 30 front-page story ["Energy Bill Raises Fears About Pollution, Fraud; Critics Point to Perks for Industry"] "gave the federal government new eminent-domain powers to clear paths for power lines -- a long-standing demand of the nation's electric utilities." The utilities said they were being thwarted by not-in-my-back-yard opposition, so the same politicians who seemed concerned about private property rights exercised their rights to adopt a double standard.
In another proposed "taking" for big business, Sen. John Ensign (R-Nev.) introduced a bill to overhaul the 1996 Telecommunications Act. It would allow phone and cable service providers to void local franchise agreements and deploy subscription video services, even though local governments have provided public rights of way for these services. The bill also would limit the circumstances under which local governments could offer low-cost broadband Internet services to their residents.
For some federal and state legislators, eminent domain is an opportunity to have it both ways. Notwithstanding the Kelo decision, Virginia sharply constrains localities' ability to condemn land to provide economic benefits to the public. However, unlike the federal and state processes, local authorities' uses of eminent domain authority are open to public scrutiny.
Arlington County Board