Publication Date

2020

Journal

Brigham-Kanner Property Rights Conference Journal

Abstract

When an energy provider condemns fee interests or easements to permit construction of transmission lines, what roles do state and federal law play in determining the "just compensation" available to affected landowners? That question has arisen in a number of different factual contexts. Usually, condemnors seek to avoid state law rules that provide for compensation beyond what they believe represents the market value of the property they seek to acquire. For instance, condemnors may seek an offset for benefits the condemnation generates for neighboring land owned by the condemnee. Condemnors may also seek to avoid state rules that entitle condemnees to attorney's fees associated with challenging the condemnor's valuation of the property or the condemnation itself-or condemnors may seek application of federal evidentiary rules rather than the evidentiary rules the state would apply.

Federal courts have struggled with these cases and have, for the most part, reached sensible results-but often for the wrong reasons. In particular, courts have lost sight of the role the Federal Constitution plays in these disputes and have cast the issue as a choice between state law and federal common law. Part I of this Paper explores existing law. Part II reconceptualizes the issue to highlight the federal constitutional issues.

Volume

9

First Page

205

Last Page

226

Publisher

William & Mary Law School

Keywords

Eminent Domain, Land Use and the Law, Just Compensation, Constitutional Law

Disciplines

Constitutional Law | Land Use Law | Law

Comments

The State of Regulatory Takings: October 3-4, 2019: Panel 3: Natural Gas and Other Energy Takings: Protecting Private Property Rights When the Public Interest Is Promoted by a Non-Governmental Entity

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