Thursday, February 13, 2025

Eminent Domain Abuse:

Posted

The Supreme Court predicted it in 2005; 43 states did something about it; Kansas did not!

Dear Editor,

Grain Belt Express (GBE or GBX) is a controversial project that proposes to transmit electricity from Kansas to Indiana after passing through Missouri and Illinois.

It intends to send 5,000 megawatts through high-voltage lines so that Kansas wind power might benefit electric grids in the Northeastern United States. The project, first proposed by Clean Line Energy Partners in 2009, was acquired in 2018 by Invenergy Transmission LLC, a privately-owned company based in Chicago. Invenergy has invoked eminent domain to obtain easements on the property of thousands of Midwestern farmers, homeowners, and businesses.

Eminent domain derives from the “takings clause” of the Fifth Amendment of the U.S. Constitution, which states that the government or its delegate may use land for the public good as long as fair compensation is provided. One of the most notable interpretations of the takings clause resulted from the 2005 U.S. Supreme Court decision titled Kelo vs. City of New London (the basis for the movie Little Pink House.) Susette Kelo purchased what she regarded as her dream home in 1997 in Fort Trumbull, a park in New London, Connecticut. It was a well-kept, close-knit neighborhood.

In 1998, Pfizer Pharmaceuticals built a plant next to Fort Trumbull, and the city of New London decided that the park was a depressed neighborhood in need of economic development. The city wanted to generate revenue when it learned that Pfizer wanted to expand into Susette’s neighborhood. The city therefore invoked eminent domain over Fort Trumbull so that the New London Development Corporation could seize the land for public use. Susette and her neighbors fought hard to keep their homes, but the U.S. Supreme Court ruled that such economic development was in the public good.

It's important to note the opinions of the dissenting justices.

Justice Clarence Thomas claimed that the urban renewal project offered “a vague promise of new jobs and increased tax revenue.” Justice Sandra Day O’Conner wrote that “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carleton, any home with a shopping mall, or any farm with a factory.” The dissent claimed that “The beneficiaries [of the decision] are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

Clean Line Energy Partners began GBX, but there were other renewable energy projects on the books, including one to deliver wind power to Oklahoma, Illinois, Arkansas, and Tennessee (Plains and Eastern Clean Line). Clean Line, however, folded for a number of reasons. The Tennessee Valley Authority didn’t want any of the line’s electricity, and the State of Illinois didn’t regard Clean Line as a public utility acting in the public interest and denied the company a certificate of convenience. The Department of Energy therefore terminated its financial support for the line. Most importantly, however, lawmakers in Arkansas viewed Plains and Eastern Clean Line as an obvious abuse of eminent domain. The state had no intention of allowing a Kelo-like scenario to occur in its jurisdiction.

In the aftermath of Kelo vs. City of New London, the Institute for Justice, which had represented Susette and her neighbors, warned that eminent domain abuse would continue and launched a campaign titled Hands Off My Home. Within five years of the U.S. Supreme Court verdict in 2005, forty-three states enacted legislation to prevent the abuse of eminent domain in the name of economic development, and nine states’ supreme courts restricted the use of eminent domain for the same reason. Because of these proactive measures, forty-four projects that sought to invoke eminent domain for private gain were shut down.

But why didn’t Kansas legislators or the Kansas Corporation Commission adopt the same tough measures to protect its citizens?

On July 1, 2007, the Kansas legislature enacted K.S.A 26-501a, which prohibited the taking of private property by eminent domain for transfer to a private entity. On the same day, K.S.A 26-501b was enacted, an amendment that stipulated that the Kansas legislature could authorize eminent domain for “private economic development purposes.” In essence, Kansas did nothing at all to protect its citizens. The amendment to K.S.A 26-501a allowed Kansas to commit the same abuse as the New London Development Corporation.

As for the Kansas Corporation Commission, they granted the permit for Grain Belt Express because Invenergy was touting job creation for the state and an economic boon of $7 billion to $9 billion for the area. The KCC acted no differently than the city of New London.

Eminent domain could be invoked for private economic development and gain at the expense of Kansas landowners regardless of the devastating impact GBX would have on property owners who treasured their homes and land as much as Susette had valued her dream home in Fort Trumbull.

But it’s dubious that any economic windfall will benefit Kansas at all. Invenergy has pledged that construction of the line will result in approximately 8,000 jobs in Kansas, but given that the state’s labor pool would not support this number, the jobs would be allocated to out-of-state residents.

The jobs would be temporary, and there are no specifics as to where $7 billion of economic investment would come from. One can hear the echoes of Justice Thomas’s words about “a vague promise of new jobs and increased tax revenue.” But the larger point is that after the Kelo decision, granting eminent domain for private corporate gain should have been off the table in Kansas.

While legislation is occasionally introduced into the Kansas Legislature that would prohibit eminent domain abuse, it always dies in committee. It’s obvious that, while some Kansas lawmakers take the issue seriously, Kansas Legislative leadership doesn’t. One can only speculate as to why these elected individuals do not want to take a stand on seizing land for private economic development, but surely the role of lobbyists cannot be dismissed. Again, one can hear the echoes of the U.S. Supreme Court dissent in 2005, which predicted that people with disproportionate influence and power in the political process will be favored over the average citizen.

K.S.A 26-501b also stipulated that eminent domain could be invoked by a utility. This is not uncommon, but as the State of Illinois stated for both Plains and Eastern Clean Line and Grain Belt Express, these merchant lines with a “transmission utility status” only are not valid utilities operating in the public good. No one is forced to buy energy from a merchant transmission line.

It's disturbing that the KCC cannot see the parallels between GBX and Plains and Eastern Clean Line. Grain Belt Express is running into all the same problems as Plains and Eastern Clean Line — permitting issues, claims of eminent domain abuse, a lack of funding, a lack of customers, and an uncertain future alliance with the Department of Energy. Surely it is madness for the KCC and State Legislators to allow eminent domain to be invoked when the project hangs in limbo. Surely it is eminent domain abuse when land is taken for a project that has remained speculative for over twelve years. And as of now, the Midwest Independent System Operator, or MISO, has not included GBX on its grid because it questions whether GBX can deliver affordable electricity. It is a project with “ever-shifting assumptions and specifications.”

Why is Kansas beholden to a company that is interested in private economic gain rather than the farms and legacies of Kansans?

Every Kansas Legislator, state or federal, should be made to answer one simple question: Are you for or against this land grab that constitutes federal overreach and eminent domain abuse?

One might say that Invenergy is the Pfizer of Kansas. It seeks economic benefit at the expense of Kansas landowners — the average person like Susette Kelo who wanted to preserve a simple way of life and hold onto her home. The U.S. Supreme Court dissent got it right: political influence and big corporations are abusing eminent domain. For the record, the Fort Trumbull urban renewal development never materialized. By 2010, Susette Kelo’s neighborhood consisted of vacant lots that generated no tax revenue for the city of New London. After Hurricane Irene hit the area in 2011, the neighborhood was turned into a trash dump for storm debris. Will this be the fate of farmland, homes, and businesses that have been in Kansas for generations? The answer to that question lies in the hands of the KCC and our Legislators.

Sincerely, Tammy Hammond Landowner & Rosewood Services CEO Pawnee Rock, KS