Out of Control Policy Blog

Eminent Domain: Threat to Conservation?

As a further testament to the widespread (and cross-ideological) opposition to the Supreme Court's decision in the Kelo vs. New London, the American Farmland Trust issued a statement this week raising concerns about the possibility of agricultural land and open space being taken for economic development purposes:

    The ruling concerns conservation groups, who question whether the decision might allow communities to take private agricultural land and open space through eminent domain for development projects. "With so much farmland on the urban edge and near cities still in steep decline, ex-urban towns could be tempted by this ruling to make farmland available for subdivisions," said American Farmland Trust President Ralph Grossi.

    Critics of the ruling are already at work on legislation to hinder the use of eminent domain takings for economic development projects. On June 30, the House voted 231 to 189 to approve a measure that would deny federal funds to any city or state project that used eminent domain to seize private property to make way for profit-generating projects, such as hotels or malls. The measure, an amendment to an appropriations bill, would apply to funds administered by the departments of Transportation, Treasury, and Housing and Urban Development. Key members of the House and Senate have vowed to take even broader steps soon, and various states may also take action to impose stricter standards on eminent domain takings.

    "Farmers concerned about the potential use of eminent domain in their areas should attend local government meetings and get involved in the relevant planning process," said Bob Wagner, AFT's managing director for field programs.

AFT specifically mentioned concern over privately-held farmland and open spaces, but it seems that they missed an opportunity to comment on the threat to lands held by land trusts like the Nature Conservancy and similar organizations. While land trusts do generally fall under the category of private, not-for-profit corporations, the non-specific tone of the statement seemed - at least to my ears - to center on threats faced by farmers and individual landowners. The specific omission of land trusts is indeed puzzling given that AFT encourages the conservation activities of these groups.

As far as the environmental impact of Kelo goes, I worry that it could harm market-based conservation efforts like the conservation easement and outright land purchases routinely conducted by land trusts. In the wake of Kelo, is it wise to trust a revenue-hungry government to keep its hands off large, protected greenfield tracts that obviously have tremendous economic development potential? And if it injects a degree of uncertainty regarding the ability of land trusts to actually protect land, what would be the long-term effects on landowners' willingness to engage in market-based conservation? There's some interesting discussion on this at Asymmetrical Information and Slate.

And setting aside the economic development angle for a moment, an opposite, but equally frightening, scenario is also conceivable. Could the expansive notion of the "public purpose" validated by Kelo eventually grow to include the taking of private land for the purpose of habitat, park, or open space conservation? Certainly there are some judges out there sympathetic to the notion of conservation as a public good.

These contradictory examples illustrate the need for state and local government action to clarify the appropriate uses of the eminent domain power.

Leonard Gilroy is Director of Government Reform


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