Where is the conservative commitment to property rights?
At first, this might seem a silly question. Of course conservatives defend the right to private property, arguably the single most important principle upon which the nation was founded. But it’s not so silly in light of what’s happening in Virginia — my home state, as well as that of Thomas Jefferson and James Madison.
The story begins with the 2005 Supreme Court case Kelo v. New London. According to the Fifth Amendment, government may confiscate private property only if the action is for “public use” and the landowner receives “just compensation.” Madison had chosen the word “use” carefully, believing it to be narrower than alternatives such as “purpose,” “interest,” “good,” or “benefit”: If the public wouldn’t use the result of the seizure, the seizure couldn’t happen. Regardless, in Kelo, the Court said it was constitutional for a government to take property from one private entity and give it to another that would pay more in taxes or create jobs.
Virginia citizens resisted this ruling, overwhelmingly voting to amend their state constitution to prevent such abuse. But the amendment contained a major exception: “A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services.”
Now, a consortium of companies — led by Dominion Energy — is attempting to force a major natural-gas pipeline down the throats of our people, whether or not they agree to yield their land. The final decision lies in the hands of the Federal Energy Regulatory Commission (FERC), an unelected body whose board consists of five presidential appointees drawn from the very industry the agency is supposed to “regulate.” It essentially never turns its thumbs down. This is not what Madison had in mind when he wrote that no person could be “deprived of life, liberty, or property, without due process of law.”
Thus the front line in American citizens’ struggle against the abuse of eminent domain has shifted to the birthplace of the Bill of Rights.
Local opposition to the pipeline — which cuts across distinctions of race, class, education, occupation, and political affiliation — has been fierce. Experts have testified that it is a redundant addition to an already adequate infrastructure. It will create only a handful of new jobs, will make it impossible for proposed new businesses to open, will do immeasurable damage to our land, and will subject those in its blast zone to the high risk of a devastating explosion. In the U.S. there are about eight gas-pipeline explosions a month.
These are serious practical objections, but there is also a key issue of legitimate governance here. Since there is no provision for our “public use” of the gas being transported, what could possibly justify the exercise of eminent domain? Nothing. This is about money, pure and simple. Dominion Energy is the largest and most influential corporation in the Commonwealth and donates heavily to officials from both parties. It also gets a FERC-guaranteed 14 percent return on equity. Ratepayers will bear the risk of building the pipeline and will pay above-market rates for the privilege.
Again, Kelo legitimized the seizure of private property by local governments in the hope of getting increased tax revenues. Obviously, that was bad enough. But the proposed pipeline in Virginia and similar projects elsewhere — including, as President Trump noted during the campaign, the Keystone Pipeline beloved by so many conservatives — push beyond Kelo.
Here there is a huge, constitutionally critical question that puts the basic Jeffersonian idea of property rights to the test: Does the government have the right to cede the power of eminent domain itself to a corporate entity?
One would think the proper American answer would be a resounding no. But no current Virginia officeholder has stood up to Dominion on this matter. Among challengers in this year’s elections, the only opposition has come from the left. Conservatives are uniformly, and depressingly, sitting on the hands with which they’ve eagerly taken campaign donations.
Surprisingly, this constitutional issue has never been adjudicated. But something big is happening in Virginia. As soon as Dominion tries to forcibly take private property, a challenge will start to make its way through the courts.
We should be united in pushing back against governmental overreach.
Legal teams are ready, though that’s unlikely to help the luckless citizens of Virginia and other states who face the imminent theft, destruction, and devaluation of their land. The appeals will probably take years, and it’s improbable that any court along the way will issue a meaningful stay on construction. When the Supreme Court finally rules, chances are the pipeline will long since have been built.
Nevertheless, these illegitimate property grabs by government-industry partnerships need to be put on trial. Desperately. If we’re fortunate, the Supreme Court will do its job and declare them unconstitutional. Sadly, given the current corporatist makeup of the Court, it could easily vote to sanction them.
In the meantime, the silence of the politicians, and especially conservatives, is shameful. We should be united in pushing back against governmental overreach.
— Doug Hornig has published eleven books and hundreds of articles. He has ten years’ experience writing about natural resources and technology for Casey Research, a leading investment advisory firm.