Pipeline takings have also become more controversial as a result of the enormous political backlash generated by the Supreme Court’s 2005 decision in Kelo v. City of New London, which ruled that it was permissible for the government to take property from one private owner and give it to another in order to promote “economic development.” While “economic development” and pipeline condemnations are legally distinct and raise somewhat different policy issues, the controversy over Kelo led to greater skepticism about a variety of different uses of eminent domain. Like the struggle over pipeline takings, the reaction against Kelo also featured unconventional left-right coalitions.
I discuss pipeline takings in greater detail in Chapter 8 of my recent book on eminent domain and the Constitution. In my view, some pipeline condemnations do meet the Fifth Amendment’s requirement that eminent domain can only be used to take property for a “public use.” Many pipelines are “common carriers” required to allow the entire public to use their facilities. But, as explained in the book, in many cases the common carrier requirement is either ignored or only given lip service. Even pipeline takings that fully comply with public use restrictions still sometimes inflict harm on property owners and the environment that outweighs any likely benefits.
Unlike in the case of takings for private economic development, I am not convinced that we should ban pipeline condemnations completely. Pipelines often face more severe “holdout” problems than conventional development projects. But pipeline condemnations should be much more tightly constrained than is currently the case in many states.