ABOUT A DECADE AGO, after the U.S. Supreme Court said the Constitution does not prohibit governments from forcing people to sell their property to a business the government favors, there was a mad rush to change state constitutions to outlaw such for-profit condemnations.
The madness rushed into South Carolina, where it was already pretty clear that government could not use this power of eminent domain to benefit private companies; it could only be used to buy property for “public use.” Still, we amended our constitution to make it extra clear.
Some libertarians tried to go further and eliminate eminent domain, even when it’s used, say, to purchase land for highways; that effort was derailed. Some tried to go further still and confuse the public by talking about “regulatory takings,” which most of us call zoning. Rational people recognize that, unless it’s an island, a piece of property isn’t … well, an island; its value is contingent in part on the value and use of nearby property, and efforts to outlaw this were derailed as well.
I’ve been thinking about the anti-takings crusaders lately and wondering, where are those folks when you need them?
For all of their efforts to restrict how government could condemn property, or simply limit its use, opponents somehow overlooked something that is much more egregious: Our state has granted some businesses the power to force people to sell their property.
This came to light when Houston energy giant Kinder Morgan announced that it planned to build a 360-mile petroleum pipeline from Florida to South Carolina. Although officials said they would negotiate in good faith to purchase land outright or to purchase easements that allow it to plunk down a pipe in the middle of someone else’s property, they also made it clear that they would use the power of eminent domain to purchase property that owners didn’t want to sell.
That means that if you own a piece of property on Kinder Morgan’s route, and you don’t want to sell it, or you don’t think Kinder Morgan is offering you a fair price, your only option is to spend your money taking the company to court. Otherwise, it can cut you a check for the amount it sees fit, and bulldoze through your property.
And people are worried about the government forcing them to sell land for a highway? Really?
The government is run by people we elect, who we have the opportunity to unelect. Kinder Morgan is run by people in Texas who have no reason to care what we think.
This is where we need to pause and think about precisely what it is that we are discussing, because the word “pipeline” has gotten so politicized that it’s easy to take our ideas about a little pipeline called Keystone XL and apply them to any project that includes the “P” word.
We are not discussing whether a petroleum pipeline would be good or bad for the economy or national security or the environment or anything else. We are not discussing whether Kinder Morgan should be allowed to build the pipeline; there certainly isn’t anyone in South Carolina who’s going to stop it.
We are talking about whether Kinder Morgan should be able to force you to sell your land — or whether it should be forced to negotiate with you like anyone else who wants to buy your land.
The good news is that S.C. Solicitor General Bob Cook wrote an attorney general’s opinion this month that raised serious doubts about whether state law actually gives Kinder Morgan this authority. The opinion is significantly hedged, owing to language in state law that on the surface looks as though it gives Kinder Morgan the same authority that state law gives regulated utilities. But Mr. Cook has an excellent track record with such opinions, and if you’ve spent much time reading state Supreme Court orders, it’s hard to come away from the opinion believing that Kinder Morgan would prevail in a lawsuit challenging its authority.
Using the rules of statutory construction that the court regularly uses, the opinion concludes that the “pipelines” for which property can be condemned are natural gas pipelines, not petroleum pipelines. (Yes, that seems an odd distinction, but it’s based in both law and history.)
The bad news is that it’s up to property owners to take the company to court to stop it from forcing them to sell their property. I can understand forcing the property owner to file suit when government is forcing a sale, but it doesn’t seem right for landowners to have to spend money filing and fighting a lawsuit to keep private companies from seizing their land. If it gets to that, I would hope that the attorney general’s office could find a way to represent them.
Better still, the Legislature needs to fix this. And by fix, I don’t mean mimic a Georgia law that requires the state to find that a project would serve a public need or purpose before a pipeline company can force people to sell their property. That’s better than giving companies unrestricted, unrestrained eminent domain powers — and Georgia has blocked Kinder Morgan’s condemnation based on that law — and it’s what bills that were filled this spring would do.
But those bills were filed before the attorney general’s opinion was written. If that opinion is correct — and I’ll put my money on Mr. Cook’s opinions any day — then these bills wouldn’t restrict a current power; they would grant a power that doesn’t exist right now.
What lawmakers need to do is rewrite the law we already have to make it more than clear that petroleum companies can’t force people to sell their land.
It’s unclear to me whether our regulatory system is muscular enough to justify allowing regulated utilities to do this. The idea that an unregulated business could be able to do it is simply beyond the pale.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.