In 2005, the US Supreme Court issued a unanimous, but very controversial decision in Kelo vs. New London, deciding that government entities could employ eminent domain not just for their own use, but to transfer land from one private owner to another in order to increase the tax base and spur other economic benefits.
Some states reacted swiftly by enacting new eminent domain laws. In Nebraska, LB2006, passed the following year, essentially banned eminent domain takings for economic development purposes, but carved an exemption for oil and gas pipelines.
Brian Jorde of Domina Law in Omaha:Read Hurst's entire article here.
“TransCanada gets a forever easement for a one-time payment.” ...Instead, he said, easement terms should come on a temporary basis, forcing TransCanada to pay landowners in regular intervals.
Maurice Thompson, a constitutional lawyer and executive director for 1851:
...the pipeline companies shouldn’t have power to condemn land for their own use. The reason? The public doesn’t use the pipeline, a classical argument of eminent domain.
“The use of property has to be by the government,” he explained. “The Constitution requires public use, not public benefit.
Scholars on the subject generally agree that justification for eminent domain use has broadened widely in the past century, sliding from public use to public purpose to public benefit. Public use, for example, means taking land for roads and bridges. Public benefit, in the vastly expanded understanding, might mean condemning a less valuable property in favor a development that will create jobs or greater tax revenue.
Thompson wonders if the Keystone, which makes no stops in the Nebraska, even directly benefits the state under the widened scope of eminent domain powers. “Does it service anybody in the state, much less everybody?” Thompson asked... giving a private company eminent domain authority leaves landowners at a distinct disadvantage and harms their economic interests... “It’s the ultimate in corporate welfare.”
Thompson strongly believes that pipelines shouldn’t have eminent domain authority because it hurts landowners in negotiations, thereby helping corporate bottom lines. “The threat of eminent domain … gives corporations tremendous leverage to lower the amount they pay,” he said.
His evidence? Thompson said that once [his adversary] Enterprise realized it couldn’t simply take land, it increased the easement payment offer to one of his clients by nearly $100,000.