Wind Power and the Threat of Eminent Domain

Wind Power and the Threat of Eminent Domain

No American citizen who turns on a TV, radio or reads the news can be unaware of the current push by the Obama Administration to fast track “green” energy projects. Further, in light of the questions raised by the possibility of man-caused global warming, it is prudent that we continue to develop these technologies. But a news item that I recently scanned causes me to be even more deeply concerned over the continued loss of individual freedom and abuse of government power for the “greater good”.

Most Americans are somewhat familiar with property rights. In rural areas, landowners not only own the surface of the land, but they also own the air above it and whatever is below it, all the way to the core of the earth (although for obvious practical reasons, nobody really enforces that ownership beyond man’s ability to reach downward into the earth’s crust). Simply put, if water, oil, natural gas are found under private land it belongs to the landowner and any company or city wanting to develop that resource must either buy the land or buy the rights to the resource from the landowner.

Similarly, if somebody were to build a structure near the property line that overhung private property, the landowner could force the owner of the structure to modify it so that it does not extend over his property.

Enter the city of New Ulm, Minnesota, which has proposed to construct a 237 acre, 8 megawatt wind farm. The city has already acquired the easements for the installation of the wind turbines. However, the State of Minnesota compels wind farm operators to obtain the “wind” rights from the landowners of a nearly equal amount of acreage in the direction of the prevailing winds. These landowners have so far refused to grant the easement, which has stalled the $16-18 million project.

The city of New Ulm has applied for a variance in order to proceed with the project without getting the easement from these recalcitrant landowners. If we were talking about water, this would be unthinkable. Instead, the developers of the project would be forced to buy the water rights from those that lived upstream to their project.

The New Ulm city attorney, Hugh Nierengarten, stated that “it will be necessary for the City of New Ulm to exercise its powers of eminent domain to secure such rights and move this vital project forward.”

The sticky wicket in this whole situation is the fact that the wind farm site isn’t located in the same county. This means that the objecting landowners have no way to hold the politicians and their legal representatives at bay. Jeff Franta, one of the farmers refusing to sign the easement and chief organizer of the opposition stated that it is within their right to refuse to grant easements to a project that could have a potential negative effect on the value of their property. He further stated “Wind rights are property rights like oil, water or a gravel pit. Wind is like oil in the sky so to speak. How can you use eminent domain to get something that can produce profit?”

The use of eminent domain is an important but volatile concept in American politics. Eminent domain gives a municipality the right to seize privately held land if the land will be used for "public use", and even then the landowner must be compensated fairly. This concept is based primarily on the following clause of the fifth amendment to the Constitution of the United States, which says: “…nor be deprived of life, liberty or property without the due process of law; nor shall private property be taken for public use, without just compensation.”

The most prominent recent case of eminent domain was Kelo vs. the City of New London, which was decided by the United State Supreme Court in June of 2005. The majority opinion, which decided in favor of the City of New London, chose to interpret the fifth amendment term “public use” to mean “public purpose”, citing the 1984 case of Hawaii Housing Authority v. Midkiff.

The dissenting opinion held that by using the “public purpose” interpretation this would enable a sort of reverse Robin Hood scheme whereby wealthy developers with political influence would be able to take property from the poor and middle-classes at below-market values. Further the distinction between private and public use of property would be so blurred as to effectively render inconsequential any protection provided by the fifth amendment with regards to usurpation by the government of private land rights.

To illustrate the difference, public use would imply the construction of a facility that would be run by the municipality that would be actually USED by the public. Examples include public schools and libraries, court buildings, city halls, and roadways. Public purpose has a much broader definition and implies any project that could benefit the public, usually financially. An example would be condemning a depressed urban area (homeowners) in order to develop an economic project (like a shopping mall or a factory) because it would bring increased tax revenues or provide new jobs, which would benefit the community (public purpose).

In conclusion, were the City of New Ulm to successfully either a) execute eminent domain on the farmers or b) get a waiver on the requirement to get the wind rights easement from the farmers, the City of New Ulm would then stand to profit from the new wind power farm while the farmers would derive no benefit as they do not live in the same county as the City of New Ulm.

Which leads me to ask two closing questions, the first of which is “Have you tried offering the farmers royalties or subsidies for the use of the wind that flows over their private property?” The second question would only need to be asked if the farmers lose their fight. “Will the Kennedy’s then be forced to accept the wind farm proposal on the Massachusetts coastline that they fought because it would ‘lower property values’?”