The North Dakota Access Pipeline and the Keystone XL Pipeline reveal a deeply troubling corporate-state nexus that hard wires collusion between all levels of government and corporations. Eminent domain is the linchpin that keeps this unholy alliance together.
Article V of the United States Constitution provides for eminent domain--the taking of private property by the government when it is "for public use."
Historically governments have exercised the power of eminent domain for building public roads, libraries, courthouses, fire stations and the like. The justification for eminent domain is that it allows the government to better serve and protect the public.
In a landmark case, Kelo v. New London, 545 US 469 (2005), the US Supreme Court expanded the meaning of "public use" to include "public purpose." As Ilya Somin of the Washington Postexplained in a May 29, 2015 article, in hopes of gaining a foothold in a predominantly Democratic district of New London, Connecticut, Republican Governor John Rowland resuscitated the long-moribund New London Development Corporation (NLDC) in hopes of replacing a stable working-class neighborhood with a business park complete with upscale homes and shops. A new office building for Pfizer, Inc. was going to be the anchor for the park.
Facing the threat of eminent domain most residents in the neighborhood "volunteered" to sell their homes, but Ms. Kelo and a few other residents resisted and turned to the courts for protection. In a 5-4 split decision, the Court ruled that "public purpose" was a legitimate meaning of "public use," and allowed the NLDC plan to go forward. Homes were destroyed, but the business park was never built. Today this once stable neighborhood is an empty lot.
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more."
Since 2005 the trend has been for government to use the power of eminent domain to support economic development—including private commercial and industrial developments.
Eminent domain and the threat of the forced taking of private land allowed Energy Transfer Partners to gain the access it needed to construct the 1,172 mile DAPL, which crosses four states. Eminent domain also gave the legal cover that allowed law enforcement officers to arrest water protectors for trespassing.
Most recently the Joint Terrorism Task Force of the FBI has taken three people who opposed DALP in for interrogation. Senator Al Frankenhas written a letter asking for an explanation. We can only hope that the Senator's letter will lead to the restoration of the more limited meaning of eminent domain.