Legal News

Eminent Domain Week Continues: On New Ulm and Wind Space

By Ashby Jones

When we said on Thursday that it was eminent domain week, we really weren’t kidding.

The latest tale we’ll present (and barring unforeseen developments, the last we’ll present for the week), comes to us courtesy of Andrew Breitbart’s Big Government blog. (Hat tip: Volokh). The story presents a fascinating question: Can a state or city build a wind farm and condemn the air space over adjacent private property?

According to the story, the city of New Ulm, Minn., has proposed such a plan as part of a broader move to build an 8 megawatt windfarm.

New Ulm has acquired easements for 237 acres on which the wind farm would be built. A state requirement, however, compels wind farm operators to obtain the so-called wind rights to about 235 acres of adjacent property in the path of the prevailing winds to assure a free flow of wind to the turbines. The city gotten blowback from some of the wind farm's neighbors, who refuse to grant the necessary easements.

On the one side stands Hugh Nierengarten, the New Ulm city attorney: He states: "This is merely an evolution of principles that have been evolving since the sovereign rights of eminent domain were determined to exist.”

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

Over at the Volokh Conspiracy, George Mason law professor Ilya Somin weighs in, writing that the Minnesota taking would likely pass constitutional muster. Writes Somin:

[T]he 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 . . . but it clearly permits takings for "direct public use" (i.e. - government ownership of the condemned land).

That said, Somin’s not convinced that the eminent domain idea is a good one.

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.

In any event, might we see more of this as time rolls on? As the Breitbart article points out, the nation is “fast tracking” green energy projects often fueled by federal grants — much of which stems from stimulus spending.

LB YouTube Video of the Day: Perceptive readers of this blog will know that we’re a real sucker for good 1980s-era synth pop. One of our favorite albums from the genre is Thomas Dolby’s 1982 masterpiece, The Golden Age of Wireless. Click here to watch Dolby doing “Windpower,” one of the album’s standout cuts, with a bunch of drums that make strange noises. God only knows what the song’s about, but we love it.

Full post as published by Law Blog - WSJ.com on December 04, 2009 (boomark / email).