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:
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.