The last two parts of this series have discussed how and why the Department of Energy and the Federal Energy Regulation Commission (FERC) may declare a “geographic area” as a national interest electric transmission corridor and how that designation enables the FERC to overrule local regulators and issue construction permits under a very broad set of circumstances. Today’s discussion goes into the law of rights-of-way, easements, and the exercising of eminent domain by utilities who have been granted federal transmission line construction permits.
Rights-of-Way, Easements, and Exercising Eminent Domain
If you live along open space or you have shared cable boxes in your yard, you’re probably familiar with the concepts of “rights-of-way” and easements. Rights-of-way grant specific entities or the public access across private property while easements give those entities the authority to do something specific on or with your property. In the case of private property abutting open space, the right-of-way and easement might be for fence maintenance or to service buried utilities that run along the border. In the case of a shared cable box, the right-of-way would be for the cable company to access and service their property (the cable box). Rights-of-way with respect to transmission lines are significantly more involved because the transmission lines take up a significant amount of land beneath and around them and because the presence of transmission lines imposes significant restrictions on what else that land can be used for.According to the American Transmission Company’s Easements and Right-of-Way page, rights-of-way can be 75 to 150 feet wide depending on the transmission line voltage and the height of the supporting towers. Additionally, the presence of structures, trees, etc. are severely restricted for safety, reliability, and servicing reasons. After all, you don’t want trees shorting out the lines or servicing equipment breaking underground water lines. For more information on both rights-of-way and easements, see also the Tennessee Valley Authority’s FAQ on the subject.
So, what does the Energy Policy Act of 2005 (the EPAct) have to say about rights-of-way? A great deal, unfortunately for individuals and organizations who would like to prevent the federal government from overruling them with respect to transmission lines.
(1) In the case of a permit under subsection (b) for electric transmission facilities to be located on property other than property owned by the United States or a State, if the permit holder cannot acquire by contract, or is unable to agree with the owner of the property to the compensation to be paid for, the necessary right-of-way to construct or modify the transmission facilities, the permit holder may acquire the right-of-way by the exercise of the right of eminent domain in the district court of the United States for the district in which the property concerned is located, or in the appropriate court of the State in which the property is located.
(2) Any right-of-way acquired under paragraph (1) shall be used exclusively for the construction or modification of electric transmission facilities within a reasonable period of time after the acquisition.
(3) The practice and procedure in any action or proceeding under this subsection in the district court of the United States shall conform as nearly as practicable to the practice and procedure in a similar action or proceeding in the courts of the State in
which the property is located.
(4) Nothing in this subsection shall be construed to authorize the use of eminent domain to acquire a right-of-way for any purpose other than the construction, modification, operation, or maintenance of electric transmission facilities and related facilities. The right-of-way cannot be used for any other purpose, and the right-of-way shall terminate upon the termination of the use for which
the right-of-way was acquired.
(f) COMPENSATION. – (1) Any right-of-way acquired pursuant to subsection (e) shall be considered a taking of private property for which just compensation is due.
(2) Just compensation shall be an amount equal to the fair market value (including applicable severance damages) of the property taken on the date of the exercise of eminent domain authority.
Basically, if a utility and property owner cannot agree to contractual terms for right-of-way and easement access to the owner’s property for transmission line construction etc., the utility may exercise eminent domain so long as the utility compensates the property owner fair market value and any banking or similar fees that might occur as a result of the loss of property.
In this case, it is difficult to argue that transmission lines don’t qualify as a “public use” under the Fifth Amendment to the U.S. Constitution. As such, the government is permitted to exercise eminent domain so long as the property owners are fairly compensated. But how is it that private companies are being given the government function of the exercising of eminent domain?
In 1954, the Supreme Court ruled unanimously in Berman v. Parker that the Fifth Amendment permitted governments to take property for a public purpose, not just a public use. The case was the Congress’ authority over the District of Columbia and the goal of the District of Columbia Redevelopment Act of 1945 to redevelop “slums” and “blighted areas” within the District via the acquisition of property for redevelopment. The following includes extensive excerpts from the opinion, written by Justice William O. Douglas:
The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs. We deal, in other words, with what traditionally has been known as the police power….
Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation….
Public safety, public health, morality, peace and quiet, law and order — these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power, and do not delimit it….
The concept of the public welfare is broad and inclusive…. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them….
Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here, one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress, and Congress alone, to determine once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects…..
It is not for the courts to oversee the choice of the boundary line, nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch….
The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking. (references to other court decisions removed for readability)
The Berman decision was revisited in the 2005 Kelo v. the City of New London decision, where the Court decided 5-4 that taking property for the purpose of selling it to another private entity for private redevelopment and greater tax revenue was permitted under the Constitution, although not necessarily under state or local laws. In fact, the end of the majority decision, authored by Justice Stevens, states “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”
I’ve quoted broadly from the Berman decision and pointed out the Kelo decision to illustrate what guidelines the federal government uses when it exercises eminent domain. As a federal entity, the FERC does not have to abide by local or state laws that restrict its authority to exercise eminent domain – the only restrictions on the FERC, and the utilities holding transmission line development permits, are those set out in the EPAct itself. Because Congress has chosen to grant permit-holding utilities the right to exercise eminent domain on behalf of the government, the utilities must only act on the permit process “within a reasonable period of time after the acquisition” and cannot use the eminent domain powers “…for any purpose other than the construction, modification, operation, or maintenance of electric transmission facilities and related facilities.”
At least Congress was smart enough to have the rights-of-way and easements acquired by eminent domain revert back to the actual property owners in the event that the utility either didn’t use the right-of-way or if the transmission lines were removed at a later date, and the actual construction of the transmission lines must be completed “in accordance with State law.” It’s a small consolation, but it’s still better than a sharp stick in the eye.