Legal Commentary

Using Eminent Domain to Take Wind Rights

By Ilya Somin

The city of New Ulm, Minnesota may try to use eminent domain to promote wind power [HT: VC reader Paul Milligan]:

Does the government?s power of eminent domain include seizing the rights to the wind that wafts over your property? That?s the controversial question swirling around an 8 megawatt wind farm proposed by the southern Minnesota city of New Ulm and opposed by several farmers in rural Lafayette Township who refuse to grant their ?wind rights? to the city utility.

?This is merely an evolution of principles that have been evolving since the sovereign rights of eminent domain were determined to exist,? according to Hugh Nierengarten, New Ulm City Attorney.

?Eminent domain is basically like a nuclear bomb,? said Clete Goblirsch, a farmer who refuses to sign an easement. ?The repercussions would be long lasting and widespread, not just for us, but for the wind industry.?

While public utilities have fairly broad powers to use government authority to force property owners to sell to meet their needs, the New Ulm plan involves an unprecedented move to expand eminent domain authority to include the seizure of air space on private property for power generation.

?This is a first time this question has come up and the first time any entity has indicated they might use condemnation for wind development,? said Bob Cupit, an expert with the Minnesota Public Utilities Commission (PUC).

The opponents? objections to the proposed five wind turbines include noise concerns, lower property values, and adverse impact on the landscape and rural atmosphere. ?Nobody?s against wind energy,? said Jeff Franta, a farmer who?s helped organize the opposition. ?We?re just against a project being forced on an area that doesn?t want it.?

This proposed use of eminent domain is unusual in two ways. First, it will be utilized to promote wind power, which may be the first example of its kind. Second, the property rights condemned are rights to wind rather than land, which is fairly unusual (I?m not sure if it?s completely unprecedented, however). Despite these novelties, the taking would probably be constitutional even under a narrow interpretation of the ?public use? requirements in the federal and state constitutions. After all, the new owner of the condemned wind rights would be a government-owned public utility. Minnesota has enacted a relatively strong post-Kelo reform law (which I describe on pp. 2141?42 of this article), but it clearly permits takings for ?direct public use? (i.e. ? government ownership of the condemned land).

Despite its legality, I?m not convinced that this use of eminent domain is a good idea. As the linked article points out, wind farms have been successfully built and operated by private firms without using eminent domain. If the government wants to increase the use of wind power for environmental reasons, the best way to do so is simply to subsidize its production or consumption directly. There is no need to take the land of unwilling property owners. Better still, the government can simply tax the dirtier energy sources that compete with wind. That would make wind power more attractive to consumers, thereby also increasing private sector incentives for its production.

Finally, to the extent that New Ulm?s policy may be motivated by a desire to combat global warming, it makes little sense to do so by policy changes at a state or local level. New Ulm?s substitution of wind power for oil or coal will have virtually no effect on the worldwide global warming problem. Only a coordinated international initiative can hope to achieve that objective.

UPDATE: I should add that taxing the use of ?dirty? energy is superior to using eminent domain or subsidies to promote wind power because the tax option leaves the choice of alternative energy sources up to market competition. Consumers and producers in a competitive marketplace are likely to do a better job of deciding which form of clean energy is more efficient than are government planners who don?t have their own money at stake.

Full post as published by The Volokh Conspiracy on December 04, 2009 (boomark / email).