This land is my land: Eminent Domain to the rescue?

Beware of owner: Eminent domain is a controversial governmental tool -- but could be key to saving the world, according to Michael Sahn.
By MICHAEL H. SAHN //

We need to get serious, now, about protecting the world from the catastrophic impacts of global climate change.

The COVID-19 pandemic will seem uneventful compared to the long-term and irreversible consequences of the world’s rapidly changing environment. In time, we’ll have a COVID vaccine; there is no vaccine for global warming.

Enter eminent domain, the governmental authority to acquire private property – “condemn” it – in exchange for just compensation, whether the owner wants to sell or not. This can be a significant way of acquiring land and eliminating pollution sources, mitigating climate change, preserving resources and otherwise protecting the environment.

As reported in recent weeks, Arctic fires have fueled record warm temperatures, accelerated polar ice melt and spread greenhouse gases around the globe. Studies show that sea levels continue to rise at an extraordinary pace; record heat has been recorded around the world, with new highs set in Japan, the Middle East and our western states.

California, in response, has instituted rolling blackouts due to strains on its power systems, while severe weather events continue to rise, along with carbon and methane emissions.

Michael Sahn: A little give and take.

In its July 26 edition, dubbed “The Climate Issue,” the New York Times Magazine explained that climate change will cause an unprecedented migration of peoples on a global basis, to places where life is still sustainable.

Traditionally, governments have used eminent domain to acquire land to facilitate construction projects: public buildings, highways, bridges, tunnels, water lines, parks, etc. The government can even use eminent domain for “economic development purposes” – as it did in the controversial U.S. Supreme Court case Kelo v. City of New London, which concluded that Connecticut lawmakers could legally condemn property and transfer it to a private developer, even though it was not “blighted” and was being used legally.

Environmental advocates have often opposed the use of eminent domain for projects they say will destroy natural resources or otherwise harm the environment. However, in creative ways, eminent domain can also be used to protect the environment.

Just as government has the power to enact land-use regulations and zoning laws prohibiting uses that can harm the environment, the government can also condemn land as part of a comprehensive protection-and-preservation strategy.

Eminent domain can even be invoked to impose conservation easements that limit and restrict environmentally sensitive land uses. This is often done in exchange for granting development incentives and approvals for broader land-use projects; in other words, environmental protection can be considered a “public use,” just like traditional public works projects.

Types of projects that illustrate this include the acquisition and preservation of forested areas, acquisitions of waterfront property for the sake of restoring ocean dunes or building new bulkheads, and the condemnation of industrial properties in need of environmental remediation.

Another creative use of eminent domain for environmental protection is now under consideration in Michigan, where dams operated by private hydroelectric companies have failed, draining lakes, flooding plains and causing extensive erosion and damage to Midland-area homes and businesses.

In response, the not-for-profit Four Lakes Task Force has been authorized by a special assessment district – through eminent domain – to assume control of the failed dams. The FLTF is working with the local counties to raise the money needed to acquire, reconstruct and operate the dams, largely through property assessments made against the benefitted property owners.

That’s surely a creative approach to restoring the dams and lakes and protecting the environment – and the kind of innovative, forward thinking that would work well in many broader circumstances. But to take full advantage of eminent domain for environmental purposes, governments must develop a proactive program that both identifies properties to acquire for conservation and eliminates sources of existing pollution and future contamination.

Eminent domain is expensive. Government must pay fair compensation for the condemned land and for conservation easements at the time of condemnation. Enacting and enforcing land-use and environmental regulations are long and tedious propositions. Many regulations are challenged in court, resulting in years of litigation, and as we have seen, the federal government can suddenly roll back years of regulations.

But measured against the cost of not acting, the price may be well worth it.

Once land is condemned for environmental protection, there is finality. The land will not be given back. It will be in the public domain in perpetuity. The larger issue is not whether the government can condemn, or should, but what the “fair compensation” to be paid really is.

In the end, eminent domain can be a significant tool for protecting the environment – provided that government has the will and foresight to use it.

Michael H. Sahn, Esq., is the managing member of Uniondale law firm Sahn Ward Coschignano, where he concentrates on zoning and land-use planning, real estate law and transactions, and corporate, municipal and environmental law. He also represents the firm’s clients in civil litigation and appeals.