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What projects qualify as public use for eminent domain?

One of the key pieces of eminent domain law is the idea of public use. For an authorized entity to condemn an individual’s property, not only must they offer fair compensation, but the final project must be beneficial to the public.

But what qualifies as public use? It’s somewhat of a tricky question.

The definition is broad

Maybe unsurprisingly, the accepted understanding of what constitutes public use is quite broad. As professor Maureen Brady explains, the U.S. Supreme Court has determined a public use project can include:

  • Roads and bridges
  • Airports
  • Pipelines, power lines and other energy infrastructure
  • Railroads
  • Government structures
  • Projects that will promote economic development

This means developers have some leeway when it comes to claiming a proposed project is in the public’s interest. Some critics have recently been raising questions, however.

The question of export pipelines

There is a lawsuit out of Ohio that is still working its way through the legal process as of midway through 2019. It involves a natural gas pipeline that was approved by the Federal Energy Regulatory Commission in 2017. The pipeline carries natural gas from Appalachia, through Ohio and to Michigan. But a significant portion of that natural gas will be exported to Canada.

The lawsuit argues, in part, that since a notable percentage of the natural gas isn’t staying in the U.S., should the pipeline’s construction really be considered for “public use?” And if not, wouldn’t that mean the authorization of eminent domain in order to build the pipeline wasn’t lawful?

The repercussions of the case

Residents in Texas, where pipeline construction can be a near constant, could see the ripple effects of that Ohio case down the line, depending on the outcome. According to the news story, it may force the Federal Energy Regulatory Commission to further define what qualifies as “public use” in cases of eminent domain, including taking a stance on pipelines that move product meant for export.

Whatever the case, it’s almost a certainty people will continue to challenge eminent domain claims well into the future, as landowners and property owners try to ensure no developer is violating their rights.

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