For legal peeps - an interesting regulatory takings theory in play against Gov. Cuomo! Fun stuff.
Posts tagged eminent domain.
Villa Epecuen: The Town That Was Submerged For 25 Years via Amusing Planet
By late nineteenth century, the first residents and visitors started to arrive to Villa Epecuen and set up tents on the banks. Villa Epecuen transformed from a sleepy mountain village to a bustling tourist resort. The village soon had a railway line linking it to Buenos Aires. Before long, tourists from all over South American and the World came flocking, and by the 1960s, as many as 25,000 people came every year to soak in the soothing salt water. The town’s population peaked in the 1970s with more than 5,000. Nearly 300 businesses thrived, including hotels, hostels, spas, shops, and museums.
Around the same time, a long-term weather event was delivering far more rain than usual to the surrounding hills for years, and Lago Epecuen began to swell. On 10 November 1985 the enormous volume of water broke through the rock and earth dam and inundated much of the town under four feet of water. By 1993, the slow-growing flood consumed the town until it was covered in 10 meters of water.
Nearly 25 years later, in 2009, the wet weather reversed and the waters began to recede. Villa Epecuen started coming back to the surface.
Neat, but that water is a polluted disaster of radiation and radon, metals like mercury, aluminum, and iron, and countless other poisons leaching from rotting concrete, underground sewer pipes, disintegrating metal infrastructure, etc… What an environmental mess.
Energy independence is a tough pill to swallow for America’s environmentalists (and many of my lovely readers). But, it is more closely regulated here than practically any other country on the planet. It’s not perfect (and I’m well aware of the consequences, thank you), but drilling and fracking in North America is comparatively cleaner and safer. Drilling at home does provide jobs (not as many as politicians claim), contributes to the economy, is an Obama campaign promise, and (generally) helps prevent oil money from going to nefarious groups in the middle east, Russia, and Africa.
This project shines a bright light onto an issue that nearly all Americans don’t normally experience. It also serves to force environmentalists to make better arguments.
Photographing the Invisible
Marcellus Shale Documentary Project is a collaborative effort by photographers to document the effects of fracking throughout Pennsylvania. Its director considers it a modern-day equivalent to the 1935-1944 Farm Security Administration mission that sent photographers across the United States to document the challenges of rural poverty.
A profile by the New York Times though gets to a singular difficulty: “The problem facing [the] photographers… is that what they wish to describe cannot be seen — an invisible gas buried deep underground.”
Solution? Focus on people, places and processes. Via the Times:
The group’s photographs depict a heavy industrial process scattered across a rural landscape: amid miles of lush green forest or farmland, suddenly there is a shaved patch. Atop the clearing is a battery of drilling equipment: a tall derrick, bright klieg lights and lined troughs full of chemical wastewater. In some photographs, a long, steel pipeline snakes through the frame. In others, the flare from a drill rig lights the night sky. There are pictures of people, too: farmers who leased their land for drilling, homeowners with enough methane in their groundwater to light a tap on fire; and here and there, an industry employee.
Penn Station, a low, dank place. I go through here a few times a year. Every time I want to escape as quickly as possible, even if it means surfacing on the wrong street.
Jim O’Grady spends time in Penn Station so that you won’t have to — but now you may want to. Read more of his tips here.
Finally, the southern leg of the Keystone XL Pipeline is approved. The pipeline will transport tar sands oil from Canada to Texas to be refined into fuel and chemicals, them (mostly) shipped and sold on the international market. Only a portion of the oil and refined products will go to American industries and gas stations. TransCanada, a foreign company, will temporarily hire both foreign and American workers to build the pipeline, some of it on land taken via eminent domain.
On Friday, TransCanada received the last of three permits it needed from the Army Corps of Engineers to begin construction on the 485-mile stretch of pipeline.
The permits dealt a blow to efforts by national environmental groups to slow the momentum behind the southern leg of the project — now also known as the Gulf Coast project. Those groups, including Friends of the Earth and the Sierra Club, have urged their Texas supporters to send comments to the Army Corps, which governs pipeline permits there. The groups have highlighted dangers linked to wetlands and rivers.
But the Army Corps have moved ahead.
Excellent reporting via Washington Post: TransCanada gets key go-ahead for final southern leg of pipeline project
Communities in California are learning harsh lessons of sea-level rise. The rate of beach erosion increases, which in turn destroys much of what people have built. At this beach in San Fransisco, parking lots, bike lanes, and buried utility lines are being destroyed by faster than predicted erosion. Thus, there is a choice: build a bigger wall to hold back the sea, or retreat. Some cities have chosen to retreat.
Up and down the California coast, some communities are deciding it’s not worth trying to wall off the encroaching ocean. Until recently, the thought of bowing to nature was almost unheard of.
But after futile attempts to curb coastal erosion — a problem expected to grow worse with rising seas fueled by global warming — there is growing acknowledgment that the sea is relentless and any line drawn in the sand is likely to eventually wash over.
“I like to think of it as getting out of the way gracefully,” said David Revell, a senior coastal scientist at ESA PWA, a San Francisco-based environmental consulting firm involved in Goleta and other planned retreat projects.
The issue of whether to stay or flee is being confronted around the globe. Places experimenting with retreat have adopted various strategies. In Britain, for example, several sites along the Essex coast have deliberately breached seawalls to create salt marshes, which act as a natural barrier to flooding.
Excellent story via the Washington Post
The White House issued a statement supportive of TransCanada’s latest plan, saying, “The President welcomes today’s news that TransCanada plans to build a pipeline to bring crude oil from Cushing, Oklahoma, to the Gulf of Mexico.”
“As the President made clear in January, we support the company’s interest in proceeding with this project, which will help address the bottleneck of oil in Cushing that has resulted in large part from increased domestic oil production, currently at an eight year high,” the White House said. “Moving oil from the Midwest to the world-class, state-of-the-art refineries on the Gulf Coast will modernize our infrastructure, create jobs, and encourage American energy production.”
The White House said, “We look forward to working with TransCanada to ensure that it is built in a safe, responsible and timely manner, and we commit to take every step possible to expedite the necessary federal permits.”
Read the breaking news at Environmental New Service
Update: To be clear, the pipeline will be built in sections, starting in Oklahoma down to the GoM. It is not clear when the Canada/US section will begin being built, though it seems nearly all the land is secured to begin the northern section. I suspect Nebraska is the only hurdle.
Medina and her fellow tea partyers oppose TransCanada’s use of eminent domain to claim private land for pipeline use, and they say Texas laws don’t protect landowners and city councils in the event of a spill.
Eminent domain has been used for years by government agencies and private companies to build roads and pipelines, as well as parks and environmental protection areas. But a recent Texas Supreme Court decision suggested that landowners may have the legal grounds to challenge companies that use eminent domain.
Essentially, republicans support the government using eminent domain to take private property and hand it over to a foreign oil company. In a surprising alliance, some Tea Party factions joined enviros to oppose the Keystone XL Pipeline via an anti-eminent domain argument.
More at RollCall
Eminent domain in its modern form is the biggest obstacle to development. While stories like these really, really piss people off, tens of thousands of buildings are threatened by sea level rise. And, as I’ve written elsewhere on land-use and constitutional takings, a big battle is brewing. This story from the LA Times parallels many issues in the field of adaptation. If adaptation includes tough choices like condemning large swaths of vulnerable cities, how will the public respond? By the same token, if building a train involves condemning large swaths of land along the spine of California, how will the public handle it? Here’s how the Times reports the issue:
The high price of the California bullet train: Its proposed route would destroy churches, schools, homes, warehouses, banks, medical offices, stores and much more.
Whether the Central Valley can force significant changes in the bullet train plan is unclear. Up and down the valley, people know they are not playing with a strong political hand.
“Some people will say they screwed a bunch of farmers in Kings County. So who cares?” said Frank Oliveira, a farmer. “The answer is they will screw you too when it comes to your neighborhood.”
Photo: Fernando Salazar, 17, a junior at Bakersfield High School, makes a box in the wood-working shop at Bakersfield High School. A proposed high-speed rail route would require closure of the school’s industrial arts building. Credit: Anne Cusack / Los Angeles Times
Friend and colleague Jill Dougherty of CNN reports on Keystone XL Pipeline hearings (she’s also wearing a hot black leather jacket - rare for stodgy CNN). Apparently there was another public hearing, and the public actually showed up to voice it’s opinion on the pipeline. No one in the audience, that I could tell, supported the pipeline.
Source: CNN c/o Charter
See also: my Keystone XL posts, here.
Wow. Can’t imagine eminent domain working at large scales like this anymore. Everything is already built (sort of). Also, I’ve really been swooning over the LATimes.tumblr, lately…
July 31, 1958: Lomie Puckett stands guard to prevent bulldozers from leveling her Edendale house for the construction of the Golden State Freeway. Puckett wanted more money than offered for the house.
Photo credit: John Malmin / Los Angeles Times
A move that could backfire, Virginia votes 35-5 to restrict local governments’ ability to develop its land. This top down, legislative act has the strong support of the GOP, the Tea Party, and the Family Foundation, among others.
The issue is being framed to prevent abuse from local governments, who, they say, have been using their Constitutional right to take land from private citizens to benefit private companies. For example,
- Roanoke, VA seizing a building that belonged to the owners of a mom-and-pop flooring company so it could turn the property over to Carilion, a billion-dollar health-care corporation (background, here)
"Abuses" such as the above are extremely rare, and are usually a result of a city’s publicly voted-on master or redevelopment plans. Usually eminent domain is innocuous business - widening a road, building a school, making a park, protecting riverbanks, etc. But condemning blighted, dangerous, or unused property usually catches the headlines - pitting an old lady vs a big corporation and the big, bad scary government.
People do not have full “rights” to their property. They cannot do what they want with it, and have to ask government for permission to do just about anything. It’s why you don’t find restaurants in people’s basements, strip clubs next door, or gas stations in anyone’s backyard. Want to add an additional room to your home? Restricted. Want to turn your home to a 7-11? Nope, can’t do it. Want to mine that vein of coal under your front lawn? You don’t own it. In most cases, you can’t even dig a hole without doing some type of survey work. (for a stronger, law oriented defense, see here.)
Still, property rights advocates are all over this move in Virginia as if it’s some type of major win. It’s not. I think it will cost local governments millions in future litigation, and cost the state thousands of jobs from companies moving elsewhere…
Virginia Senate Moves Forward on Eminent Domain Reform
Friday, February 25, 2011 3:37 pm | By Kelsey Zahourek
This week, the Virginia Senate came one step closer to enacting true reform that would end eminent domain abuse in the Commonwealth of Virginia. In a 35-5 vote, the Senate approved a constitutional amendment that would redefine and limit the public uses for which private property may be confiscated by the government. Eminent domain is still allowed under this legislation for traditional public uses, such as schools and transportation projects for the state of Virginia, but the state would be required to fully compensate the owner. Eminent domain for the purpose of private economic development would be prohibited under the amendment.
In a Richmond Times Dispatch op-ed, A. Barton Hinkle made the case for why reform is needed in Virginia by offering a few cases of abuse that involved:
•Roanoke seizing a building that belonged to the owners of a mom-and-pop flooring company so it could turn the property over to Carilion, a billion-dollar health-care corporation.
•Norfolk trying to seize the property of Central Radio so it could hand the land over to Old Dominion University.
•VDOT trying to cheat a small day-care owner out of just compensation — and spending more on lawyers to fight the case than it would have shelled out by paying her original asking price.
The 2005 Kelo v. City of New London decision by the Supreme Court provided local governments the unrestricted opportunity to take homes and small businesses for private development. Following this court decision, legislation in both Congress and state capitals around the country has been debated on what the proper role of government is with regard to the use of eminent domain.
This is just the beginning of the process to enact reform in Virginia. For an amendment to be added to the constitution, the amendment must pass the General Assembly twice with an election in between and then go to a vote of the people through the referendum process.
My paper is finally published in The International Journal of Climate Change.
I argued that local urban planners will have to be prepared for several types of legal issues. Let me know if you’d like a copy.