Pipeline prepared for use in the controversial Keystone XL project (2012). Pipeline takings have become increasingly controversial in recent years.

Few have noticed amidst the hoopla of the presidential election. But state courts in Ohio and Pennsylvania recently issued important decisions enhancing protection for constitutional property rights. Both rulings struck down the taking of property for the benefit of private interests in ways that do not qualify as a “public use,” as required by state constitutions. Both cases involved condemnations for the benefit of private energy companies, a type of taking that has become increasingly controversial in recent years.

In Robinson Township v. Commonwealth, the Pennsylvania Supreme Court struck down a state law authorizing private firms to use eminent domain to take property for the construction of privately owned gas storage fields:

Section 3241(a), facially, confers a broad power on private corporations to take private property of other landowners to store natural gas therein….

The Commonwealth does not claim, nor can it do so reasonably, that the public is the “primary and paramount” beneficiary when private property is taken in this manner. Instead, it advances the proposition that allowing such takings would somehow advance the development of infrastructure in the Commonwealth. Such a projected benefit is speculative, and, in any event, would be merely an incidental one and not the primary purpose for allowing these type of takings. We therefore conclude that Section 3241(a) is repugnant to both the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution.

As the Court notes, privately owned pipelines and gas storage facilities might qualify as public uses if they are operated by public utilities or common carriers that have a legal duty to use these facilities to serve the general public, as opposed to merely their chosen customers. But that is not the case here.

I am not entirely convinced that this law violates the Public Use Clause of the Fifth Amendment to the federal Constitution, as currently interpreted by the US Supreme Court. Takings that transfer property to private parties for the purpose of promoting speculative “economic development” were upheld by the Supreme Court in its controversial 2005 ruling in Kelo v. City of New London. This case seems similar. In my view, Kelo was a badly misguided decision that should be reversed. But, it is for the moment, the Supreme Court’s most recent precedent on the meaning of “public use” under the Fifth Amendment. Perhaps the taking could be invalidated as a “pretextual” condemnation, where the official rationale is just a pretext for a scheme to benefit a private party – almost the only type of taking that the Kelo majority indicates would violate the Public Use Clause. But there is widespread disagreement on what exactly qualifies as a pretextual taking under Kelo. And the Pennsylvania Supreme Court did not address the issue in any detail in this case.

That said, the Kelo majority opinion explicitly indicates that states are permitted to interpret their state constitutional public use clauses as providing more protection for property owners than the federal one does. So the ruling could be justified based on the state constitution alone, without reference to the Fifth Amendment.

Prominent Pennsylvania eminent domain attorney Joel Burcat has a more detailed discussion of this ruling here.

In Kinder Morgan Utopia v. PDB Farms, Judge Robert Pollex of the Ohio Court of Common Pleas struck down a condemnation for a private gas pipeline. As in the Pennsylvania case, the problem was that the pipeline in question was neither a common carrier nor a public utility, and therefore could not be a public use:

Kinder Morgan cannot claim to be a common carrier as a matter of fact. Kinder Morgan is not offering its services to the public or even to an unlimited number of commercial enterprises.

While the pipeline might potentially promote economic development in Ohio, Judge Pollex notes that any such benefit is far from certain, and applies the Ohio Supreme Court’s 2006 decision in City of Norwood v. Horney, which repudiated Kelo’s approach to the federal Public Use Clause as a guide to the interpretation of Ohio’s state constitution.

The 1851 Center for Constitutional Law, which represented the property owners in this case, has more information about it here. And here is a local media account of the litigation.

The Ohio and Pennsylvania rulings follow similar decisions in several other states, and are important additional indications of growing judicial skepticism about abusive pipeline takings. Their relatively narrow interpretations of public use is consistent with the text and original meaning of the Fifth Amendment, and of the many state constitutional public use clauses based on it.

The growing public and judicial backlash against takings for pipelines and other energy facilities features an unusual right-left coalition between property rights advocates and environmentalists, similar in some ways to the widespread negative cross-ideological reaction against Kelo.

I discuss the constitutional and policy issues raised by pipeline takings in greater detail in my book about the Kelo case and public use. The foreword to the soon-to-be released paperback edition contains extensive additional material on this issue, including analysis of recent court decisions and legislation in several states.