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Excerpt: "Several states have granted eminent domain authority to certain private entities, including oil and gas companies. These companies are using it as a tool to seize private land."

Cabot Oil & Gas has taken Ken Ely's land, polluted his water and run over his dog in Pennsylvania. (photo: Scranton Times Tribune)
Cabot Oil & Gas has taken Ken Ely's land, polluted his water and run over his dog in Pennsylvania. (photo: Scranton Times Tribune)

Oil and Gas Companies Can Take Your Land

By Alison K. Grass, Food & Water Watch

23 August 12


No Person Shall Be Deprived of Life, Liberty or Property… Unless the Oil and Gas Industry Says So.

minent domain, the government's right to condemn (or take) private land for "public use," has at times been a highly contentious topic because it can displace people from their homes to make way for construction of different projects, like highways or roads, civic buildings and other types of public infrastructure. However, what some may not realize is that several states have granted eminent domain authority to certain private entities, including oil and gas companies. These companies are using it as a tool to seize private land, which increases profits and benefits their wallets.

According to the U.S. Constitution's Fifth Amendment, in order to pursue eminent domain, the land must be taken for "public use" and the private property owners must receive "just compensation."

No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Traditionally, the "public use" provision referred to projects like roads, schools, parks and other public facilities that could be directly used by all. However, the meaning of "public use" has been loosely interpreted in recent years.

The controversial Kelo v. City of New London (2005) is credited with broadening the interpretation of "public use." In this case, the Supreme Court ruled in favor of New London, deciding that the city could take private property and give it to another private entity for "economic development." The Court decided that this met the "public use" provision of the Fifth Amendment. But despite taking the land and spending millions of taxpayer dollars on the proposed project, the plan never came to fruition and nothing was constructed.

Now it seems that the oil and gas industry is capitalizing on this this precedent-setting case.

A University of Minnesota Law professor describes this trend: "in many natural resource-rich areas of the country, however, the knock on the door is less likely to come from a government official and much more likely to come from a mining, oil, or gas company representative."

The state legislature of North Carolina recently legalized fracking. Yet, what some residents may not know is that North Carolina's eminent domain law allows some private entities to take private property for certain uses. This includes oil and gas companies who have been given the right to condemn land and construct pipelines for natural gas transportation. As a supervising attorney at the Duke Environmental Law and Policy Clinic points out, there could be even bigger implications. "If private companies engaged in these activities are designated as 'public enterprises,' then they may be able to take private property for purposes far beyond that of laying pipelines."

In July, the Pennsylvania Commonwealth Court ruled that provisions in Act 13, (which revised the Oil and Gas Act of 1984), aiming to prevent local zoning rules for gas drilling and fracking were unconstitutional. However the Court didn't rule on the topic of eminent domain. This leaves open the possibility that oil and gas companies could pursue this as a method to take people's land.

Meanwhile in Texas, TransCanada, the company that wants to build the Keystone XL Pipeline, is trying to grab private property from a small town, claiming they have eminent domain rights-and some residents are outraged.

The Kelo case broadened the interpretation of the "public use." The city of New London took land from a private property owner so that they could give it to a private entity in the name of "economic development." Unfortunately, oil and gas companies will now have this card to play when justifying land grabs. your social media marketing partner


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+24 # dkonstruction 2012-08-23 09:17
Well, if the state can use eminent domain for this then they damn sure should be able to use it to take foreclosed homes away from the MIA "owner" (see Ellen Brown's piece -- link below -- in Truthout...sorr y, RSN but you guys haven't published it yet).

Truly disgusting how the state (when it wants to) can redefine eminent domain to take property (the sacred cow of capitalism) from one private owner and give it to another FOR PROFIT owner/developer ...Eminent domain should only be used by the state to take private property (compensating the owner at full "market value") for public projects and not for private for profit business ventures.

In the case of foreclosures, the state should be able to seize the properties (which then become "publicly owned") for "economic development" purposes i.e., to help stabilize neighborhoods that have been ravaged by foreclosure (many of them illegal foreclosures to begin with)...these homes can then be turned into permanently affordable "public housing" (i.e., rentals) or sold as truly affordable low-income homeownership opportunities (or through a "rent-to-own" program).

This would be a far cry from taking properties from one owner and turning the property over to a for profit business entity as is the case in the above article.
+11 # 666 2012-08-23 10:22
when it will be in the public interest to seize property from those who dissent?
+3 # Reductio Ad Absurdum 2012-08-23 10:36
The teabaggers who rage about socialism and the government takeover of government (I meant to say that), are oblivious to the fact that they support the very powers that champion the corporate takeover of democracy and individual rights.

On another note, to be fair, in the 2005 decision supporting "the use of eminent domain to transfer land from one private owner to another private owner to further economic development," Justice Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

This was a very rare instance in which the conservative dissenters actually made sense, prompting a shockingly astute observation from Clarence Thomas who roused himself from his nap long enough to opine, "Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not."

So the next time you're in a debate with your right-wing brother-in-law and he says, "You just hate everything about Republicans; if you were objective you could find at least one thing they've done in the last 10 years with which you agree," you can say, "Ignoring, for a moment, the fallacy of your logic-challenge d premise, in a moment as rare as a black Mouseketeer, the right wing of the Supreme Court rightly dissented in the the Kelo v. City of New London eminent domain decision."
+10 # Buddha 2012-08-23 10:38
I am ashamed to admit that it was the LIBERALS on the SCOTUS who made this horrible Kelo ruling. So now it is up to us as citizens to demand that our STATES pass legislation preventing them from using such eminent domain to take our property to give to another private entity. But, of course, that would require an aware citizenry to demand this, and like all good theft that relies on the person being stolen from being totally unaware of the theft, BigOil/Gas and developers are counting on the ignorance of the American people to let this ruling stand.
+1 # RLF 2012-08-24 06:46
Just another of the great decision coming from that bunch of geniuses!
+8 # Glen 2012-08-23 10:47
To quote a best beloved ancestor:

"By nature's law, every man has a right to seize and retake by
force his own property taken from him by another, by force of
fraud. Nor is this natural right among the first which is taken
into the hands of regular government after it is instituted. It
was long retained by our ancestors. It was a part of their common
law, laid down in their books, recognized by all the authorities,
and regulated as to circumstances of practice." --Thomas Jefferson:
Batture Case, 1812.

State and local governments have caved in the face of money under the table, or some other temptation. The ex-mayor of Orange Beach Alabama is now in jail for not resisting the temptation relative to developers. Once again, local communities MUST keep up with this sort of thing in order maintain the law and the health of their environment.
+2 # RLF 2012-08-24 06:47
If there is a place to look for the beginning of the next civil war...this is it! Take the land from gun nuts in the west that know each other and there you go!
0 # Glen 2012-08-24 12:59
There have already been skirmishes over water, and yes, folks are up in arms over land being taken by the military and similar.

However, there may be the inclination and the right, but can they win?
+6 # dkonstruction 2012-08-23 12:32
In fact, the whole notion of "private property" is relatively new...historian s say that there is virtually no mention of the concept in England, for example, until the 18th century. Prior to this time people used to refer to "the commons" and people had rights to use it and its contents...It was the Enclosures first in England but then in the rest of what was to become the capitalist world) that "privatized" the commons over a couple of hundred years and took away people's ability to be self-sufficient and to avoid having to become wage-laborers; something even Adam Smith understood so that while he was talking/writing publicly about the "free market" privately he was writing about how the state had to create the market by forcing people off the land so that they could not be self-sufficient (otherwise who in their right mind would voluntarily become a wage laborer) other words, Smith was arguing that the government had to intervene in the economy (hardly the "free marketeer" he has been made out to be) in order to create the conditions needed for capitalism (i.e., "the market") to develop in the first place.

We need to reclaim the notion of the commons as one of our strategies for fighting the new enclosures (privatization) in the US (not to mention the Enclosures being imposed throughout much of Africa and which help explain some of the battles now going on over use and control over seeds for agricultural production).
+3 # RLF 2012-08-24 06:50
You're not that bright about the ALL belonged to the crown. We have had a commons idea in this country, though, and it is called the government property and is currently under attack by the pro-corporate government...De mocratic as well as Republican. The next civil war will be between people and corporations and their mercenaries.
+3 # dkonstruction 2012-08-24 09:11
Quoting RLF:
You're not that bright about the ALL belonged to the crown. We have had a commons idea in this country, though, and it is called the government property and is currently under attack by the pro-corporate government...Democratic as well as Republican. The next civil war will be between people and corporations and their mercenaries.

RLF, thanks for your respectful comment.

You are certainly correct that in the feudal era all land was owned by the crown but, nonetheless, it was customary (for hundreds of years if not thousands)to allow all citizens to use what was denoted as "the commons" for grazing, gathering wood for fire, picking berries, etc. It was the fact that this was such a time honored custom that made people rebel against the enclosures as these were seen as a violation of people's customary rights. The notion of the commons was so "common" that there was often little or no distinction made between "the commons" (land) and "commoners" (the people) which was generally used by the ruling class as a pejorative (the people,later turning into "monsters" with the rise of capitalism and bourgeois ideology...whic h is very much where our "modern" monster tales such as Frankenstein come out of -- See David McNally's wonderful recent book "Monsters of the Market" for more on the connection between "monsters" and capitalism).
+6 # dkonstruction 2012-08-23 12:50
One of the first places i knew of this being done was in downtown brooklyn in new york city for the developer Bruce Ratner and his "Atlantic Yards" development project part of which is a new arena (to be the home of the returning Nets), the Barclay's Arena; as in Barclay's Bank which just admitted rigging the LIBOR in what amounts to the largest financial swindle (as in theft) in history.
+1 # RLF 2012-08-24 06:51
It happened in Connecticut before Brooklyn.
+1 # dkonstruction 2012-08-24 09:12
Quoting RLF:
It happened in Connecticut before Brooklyn.

I didn't say that Brooklyn was first but only that this was the first instance that i heard about eminent domain being used for this purpose...thank s for the friendly and respectful correction.
+6 # reiverpacific 2012-08-23 18:47
Hell they've been doing this for decades to Indian reservations when they were found to contain raw materials for the death machine in collusion with the departments of "Defense", giving them the sweet-as-bile title of "National Sacrifice Areas". That's much of what the "Incident at Oglala" and the second occupation of Wounded Knee was about on Pine Ridge.
The Badlands National Monument was discovered to contain large deposits of Uranium and was turned into a contaminant-hea vy, river-poisoning dump but never saw any "Superfund" cleanup status.
These native people -true stewards of the Planet- were dumped on the least productive and desirable land that they could be shoo-ed off on, given miserable commodities and marketed at by Budweiser, then had it all ripped out from under them again to enhance the military's ability to invade, pillage and pollute other nations (remember depleted uranium bunker-busters?).
Now it's coming home to white folks too.
Watch them drones, they may be lookin' at your back yard.
+6 # chrisconnolly 2012-08-23 19:55
This is truly frightening. First the oil and gas companies are made exempt from the Clean Water Act. Now they can take your property for whatever reason they come up with. What's next? They have the right to amend the constitution to require us to work for free for them? We owe them our first born children?
+4 # bspringer 2012-08-24 05:58
I have been an attorney since 1978, concentrating in eminent domain defense practice - i.e., I represent landowners in such cases. I am very familiar with this concept of the abuse of eminent domain power and would urge landowners who are confronted with the situations presented in this article, that they have considerable rights and remedies and should execute them aggressively.
+3 # KittatinyHawk 2012-08-24 08:44
I got my mineral rights when I moved in here. I believe that Pa some years ago put the eminant domain law out. However, with Corbett in...anything goes.

If people also read the Consitution, the Government so states that we are entitled to Quality of Life So perhaps we should start reading the Constitution ourselves and start learning the Federal and our own State Laws. Time people get their heads out of their sandpits or therebouts!
If I did not give permission the frackers will go to the neighbors who would sell their children for a profit.
So I would be engulfed. I would sell just to get away. I am in a heavy duty mining and shale area, figure we will be annoyed within five years
Right now in Pa the frackers are getting Audobon and other organizations to have town meetings to tell them how safe fracking is....Contact your Clubs, Organizations and take part in fighting these liars.
+2 # KittatinyHawk 2012-08-24 08:50
Fracking is a Scam Industry. Scam Industries can be stopped but sitting here and bitching will not get it done.
Fracking is holding towm meetings, latest ones involve getting Audobon involved. Go to these meetings with questions, research and do not let them lie. You must take charge of your Community. You are the reason America is in the position it is in, you want everyone to do it for ya. No more. You probably think bspringer is going to give you his hard earned work but sorry, you all went about life allowing all these things to happen. You figured us activists would make your life easier....You think OWS is going to save your.... Well guess what, you have to do it yourself.
People who sat letting the rest of us do the dirty work are nothing but Republicans. I do not help Rethugs. Want a better better start meetings, getting people involved now Cause November is not far away.
How many Voter ID's did you help people get? That is what I thought, you don't want to help, just come here and criticize.
+2 # Nominae 2012-08-25 19:27
@ KittatinyHawk

And when you organize those meetings, and the Gas Boys have their "tobacco scientists" telling you that there has never been *ONE* instance of fracking ruining the local water aquifers, tell them that you have two words for them:
"Pavillion, Wyoming" Search engines are your friend. Information is your armory.

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