Environmentalists are starting to use the same legal tactics they use to halt the construction of oil and natural gas pipelines against clean energy projects like wind farms, cutting into consumer choices for clean energy.
For years, environmentalists of all stripes have tried to constrain the growth of fossil-fuel use in a variety of ways, but not always successfully. More recently, however, some anti-development activists have effectively slowed, and even undermined, the ability of energy developers to construct pipelines across parts of the United States.
Increasingly, legal arguments against the improper use of eminent domain — the longstanding legal tradition that allows governments to force the sale of private property for public use — are gaining purchase. For activists who are largely anti-development, it’s a left-right political marriage made in heaven: grassroots defenders of private property rights lining up on the same side as oil-company opponents against developers of clean energy infrastructure.
Unfortunately for those who want to use more clean power, eminent domain lawsuits can be a dual-use weapon, available to both critics of fossil fuels and those who are anti-wind power. This means that infrastructure opponents will increasingly use — and misuse — laws originally intended to protect private property in order to strangle a growing market for renewable energy. This willingness to sacrifice clean energy infrastructure in the name of environmentalism is wrongheaded in the extreme.
The Fifth Amendment to the U.S. Constitution allows federal and state governments to take private property for “public use” — public parks and roadways being prime examples — as long as the government offers owners “just compensation” for their property. Criticism of the use of eminent domain remained dormant for decades until a 2005 Supreme Court case, Kelo v. City of New London, which broadened governments’ ability to force property owners to sell their property to developers.