Make Eminent Domain Imminent" - Fidell On Wind Power

From InverseCondemnation.com May 10, 2011

Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. This week, he focuses on eminent domain in "Governor must insure wind farm moves forward," where he writes about the proposed wind farm on Molokai, and urges the state to use eminent domain aggressively to take the needed land:

When Abercrombie threatened eminent domain against Molokai Ranch, he unleashed the genie, and the possibility of condemnation is now in play. He gave us a glimpse of a powerful solution to our energy security predicament, and we can't let it pass.

In our state of islands, land is scarce, and NIMBY is in every back yard. Large landowners want to hold on to their land in hopes of appreciation and because it's so difficult to find other parcels. So they refuse to sell.

Hawaii has traditionally been reluctant to exercise eminent domain, and big projects have suffered for it. This is a problem for both energy and other things, and we need to get over it. Big projects need big land, and until we can get that land, we'll be hampered in those projects.

The governor needs to get the Big Wind parties in a room and jawbone them into a deal. Failing that, he should do exactly what he threatened — yes, condemnation.

Take heart, governor. Be impatient about clean energy — you have the power. Make eminent domain imminent. Many people will support you in this, and a condemnation will assure progress on wind and other projects. Do it once and things will be easier going forward.

While I often agree with Jay, I can't buy in wholly this time.

First, I can’t say that we’ve "suffered" for being reluctant to condemn property (except, it appears, for residential and condo leaseholds – on that front, we’ve been very un-reluctant to condemn private property). Eminent domain is one of the most powerful attributes of sovereignty, and property owners have little in the way of defenses. It can financially and emotionally destroy homeowners and business owners to have their life’s work taken away. They may get compensated, but we invest our property with quite a bit more than what can be calculated by an appraiser. So I am glad that we exercise it reluctantly here in most cases.

Second, I also can’t agree with the use of eminent domain to favor one vendor over another. The Kelo majority’s willingness to uphold the condemnation in New London was based in large part on the fact that the city had not yet chosen Pfizer as the new owner at the time the city decided to condemn. The Court might have had a different view if, say, the city condemned the property specifically in order to turn it over to Pfizer (rather than to turn it over to a developer, who later turned out to be Pfizer).

When the government chooses a preferred beneficiary before it condemns, the taking looks a lot more like the prohibited "A-to-B" taking that the Court professes to frown upon, even after Midkiff and Kelo. The governor picking winners and losers also amounts to unwarranted interference in a process in which the government has little competence.

[Disclosure: I have represented the landowner in other cases.]