Sunday, November 1, 2015

'Preserved land' is a Form of Eminent Domain

In a Hunterdon County Democrat article, Don't let 'flawed' pipeline process allow land condemnation, Michele S. Byers, Executive Director New Jersey Conservation Foundation, argues against the PennEast Pipeline company’s proposed natural gas pipeline through portions of Pennsylvania and New Jersey because on grounds that, as the title suggests, Federal Energy Regulatory Commission (FERC) approval would carry with it eminent domain powers granted to PennEast. (On September 24, 2015, PennEast formally submitted its FERC application to build the pipe.)

On the face of it, liberty advocates certainly could agree with Byers on this. But the issue is not that simple. I left these comments:

Most of the reasons for opposing the PennEast pipeline are rationalizations and double standards used by opponents as tactics to support a broader anti-energy agenda against pipelines specifically and, more generally, fossil fuels. But this column highlights one of the few valid—and, in my view, the most serious—arguments against the pipeline.

As I’ve argued before in letters to the Democrat concerning the Solberg Airport condemnation proceedings in Readington, eminent domain is immoral and un-American, even if for a so-called “public purpose.” My arguments regarding Solberg relate also to the PennEast pipeline. Easements between PennEast and landowners should be negotiated on a level legal playing field; meaning, by voluntary contract to mutual benefit. While I strongly support PennEast’s right to build the pipeline and market the gas to willing consumers, wherever they may live, without coercive impediments from their fellow man or government—and to leave it up to producers and consumers to determine what is “needed”—condemnation powers should not be part of the approval process. PennEast should have to engage in legitimate negotiations with landowners, in which the landowner would not have the legalized gun of eminent domain hanging over their heads. This would commit PennEast to take full account of landowners’ concerns, and make offers based on those concerns, including regarding compensation. This is as it should be. This is the free market way. This is the American way.

Having said that, my argument applies only to fully private land. Their is a hidden double standard regarding so-called “preserved land” or  “taxpayer-protected open space.” The argument against the pipeline relating to condemnation of “preserved” land begs the question: Is the method of preserving land just? No.

Eminent domain, as the author observes, involves the forcible taking of private land, against the owner’s consent, leaving the owner with a pile of coercively imposed “just compensation.” But how is the land preservation program funded? By forcibly taking monetary property, in the form of taxes, from people across the state against their will. How is monetary taking different from eminent domain taking? In an important sense, farmland preservation funding is worse than eminent domain.  At least victims of eminent domain have some constitutional protection—they must be compensated. But there’s no such protection for nonconsenting taxpayers, who get nothing in compensation for funding the “preserved” land the money forcibly seized from them pays for. (Majority approval of preservation taxation doesn’t mitigate the fundamental injustice. Citizens are free to voluntarily pool their money to preserve land. But they have no “democratic right” to force unwilling citizens to pay also. Those who vote no to open space taxation—who don’t consent—are victims of an uncompensated taking.)

It’s ironic, and hypocritical, that people who complain about preserved farmland being taken for the pipeline through eminent domain ignore the taking from the taxpayer. Private landowners who exchange development rights for taxpayer money in order to “preserve” their land have no moral right to object to eminent domain exercised by PennEast, and neither do other pipeline opponents. The same goes for so-called public lands. You can’t at once oppose eminent domain and support tax-funded preservation/open space with any credibility whatsoever. The “preserved land” argument against the PennEast pipeline is just one more double standard added to the tactics employed by pipeline opponents.

Related Reading:

Eminent Domain- Always an Abuse

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