When the Government Grabs — the Border Wall, Pipelines and New Challenges to Eminent Domain

UVA Law Professor Molly Brady Says Current Land Struggles Will Confront, Update Existing Law
Maureen “Molly” Brady

Professor Maureen “Molly” Brady is an expert in property law, land use and government. She is pictured along with an archival image of a public road project that failed to make the grade.

November 7, 2017

The government is coming. They are going to take your land, and there’s nothing you can do about it.

Or is there?

From controversial projects such as President Donald Trump’s border wall and the gas pipelines, to more mundane works such as road expansion, just about any project deemed in the public interest can mean taking your property is fair game.

Professor Maureen “Molly” Brady, an expert in property law, land use and government at the University of Virginia School of Law, recently answered a few questions about eminent domain, including what landowners are doing to fight back.

What is eminent domain, and what are the pros and cons for the public?

Eminent domain is the power of the government to expropriate, or condemn private property, for public use, so long as compensation is paid to the owner. In the United States, the Fifth Amendment — specifically, the “Takings Clause” — is the provision covering its use.

Eminent domain is an important power because it prevents holdouts from thwarting publicly beneficial projects. For example, imagine 99 landowners have consented to give the government land for a roadway, but the last one — whose land is necessary for completion — says they won’t part with any land for less than $1 million (even if the land itself is only worth $100). This seems inefficient and unfair, especially if members of the public would benefit immensely from the road.

The eminent domain power ensures that individuals cannot hold projects hostage because it permits the government to compel transfer for public use and ensures that landowners receive payment.

On the other hand, the power also has a dark side. The government has sometimes had mixed motives in exercising eminent domain authority. “Urban renewal” is a prime example; in many cities, the government tore down and evicted entire minority and immigrant neighborhoods declared “decayed” or “blighted” to replace them with shopping malls, hotels and gentrified housing. In many instances, the declaration that these neighborhoods were blighted was dubious, the developments that replaced them proved to be sterile and unsuccessful, and the damage to these communities continues to be felt generations after the expropriation.

Some members of the public also view the compensation standard — which is typically the fair market value — as problematic because it does not take into account the symbolic and sentimental value of the property to its owner.

A plan for installing a massive wall at the Southern U.S. border appears to be coalescing. Do individual landowners who may disagree with the wall being placed on their land have any recourse?

As a legal matter, one of the limitations for exercise of the eminent domain power is that it must be for “public use.” The Supreme Court has interpreted public use fairly broadly: Roads, airports, bridges, dams and government buildings are all public uses, and even condemning the property to transfer it to a private entity for economic development reasons is sufficient (like a job-creating factory). While the landowners might litigate whether a wall is a “public use,” it seems likely to pass muster under the broad conception the Supreme Court has given it — although litigation over the public-use issue could certainly delay bringing the wall to fruition.

Another interesting problem is presented by the fact that some of the land along the proposed wall belongs to Native American tribes; some scholars are beginning to explore the difficulties associated with government expropriation of these lands, which are strongly protected by treaties and other federal laws.

It’s important to note that all the landowners along the wall do have some points of leverage outside purely legal claims. First, the government is required to negotiate with and compensate property owners when it uses the eminent domain power. Negotiation and litigation over the amount of compensation due can take a lot of time, which could certainly hold up the process of building the wall.

And perhaps more saliently, politics is an important constraint on the eminent domain power. Seizures of property are highly politically sensitive because they pit individual and often sympathetic landowners against the full authority of some government: a classic David-against-Goliath story. Over time, groups concerned about this power dynamic have been very successful in exerting political pressure on representatives to vote against uses of eminent domain or to minimize its use in all but the most extreme cases.

Does eminent domain law change over time?

Yes — in fact, in Virginia, we are living through one of these moments where eminent domain law will undoubtedly evolve in response to infrastructural pressure. The natural gas pipelines planned through West Virginia, Virginia, Pennsylvania and other states are raising all sorts of interesting issues in eminent domain.

In the past few months, litigants have brought new types of challenges to fight the pipelines. One case alleges that when the government is delegating its eminent domain authority to these private companies — something that has been allowed since at least the railroad era — it is not sufficiently ensuring that the pipelines meet the “public use” requirement or will be publicly beneficial because the gas might be exported.

Another case alleges that even before the pipeline is fully run through a property, the action of surveying for a pipeline “takes” property because surveyors collect valuable data about the land that the owner can normally prevent others from obtaining. Given my longstanding interest in what counts as “property” for the purposes of the constitutional protection against uncompensated expropriation, this case raises an intriguing issue.

My favorite example, though, has to be the group of nuns in Pennsylvania that are trying to fight a pipeline by putting a chapel in its path. When it comes to protections against government actions in land use, religious rights are really powerful and strongly protected. Though the nuns had an initial loss in federal court, this is a case I will be watching moving forward.

What are you currently working on related to eminent domain issues?

I have always been fascinated by how challenges associated with infrastructure — roadways, railroads, bridges, waterways — have pushed the boundaries of eminent domain law. [See her list of scholarly papers.]

Two of my recent projects — one published last year, another forthcoming next year — explore a nearly forgotten period in urban history, where localities decided it was worth utilizing new technologies to “grade” (raise and lower) streets in order to make land transportation cheaper (both rail and horse-drawn). These street grading projects caused huge problems for the law of eminent domain because leaving property on a cliff next to a newly lowered street devalued the property but did not technically appropriate any of it.

In my published paper, “Property’s Ceiling,” I explore how state courts invented a new form of property right — the “right of access” — to try to bring these sorts of claims by landowners within the scope of eminent domain coverage.

In my next paper, “The Damagings Clauses,” I discuss a different response: the fact that 27 states amended their constitutions to require compensation not just when property was “taken” for public use but also when it was “damaged” for public use. I explore how these clauses have been interpreted to have very limited effect, and I argue that they deserve a more expansive reading than they have been given.

Apart from these works, I have also been interested in other developments in takings law that have been hidden in state and local records. In one work in progress, I am exploring the rules that state courts developed for “regulatory takings” — government actions requiring compensation not because the government expropriates property, but because it has gone too far in regulating it. We know a lot about the federal regulatory takings rules but very little about how states have approached that question. I have also begun researching lots of aspects of road planning. I am interested in colonial road planning and what sorts of compensation were acceptable in the 18th century — relevant now that many courts are struggling to decide whether non-cash compensation satisfies the constitutional compensation requirement.

I am also interested in analyzing the persistence of private roads, a topic about which I was recently interviewed by the BBC. I have a lot of fun work ahead of me!

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