Keystone and Kelo

The Keystone pipeline can’t be built without taking private property rights by eminent domain. Where are the screams of outrage from the opponents of the Kelo decision?

I’m agnostic as to the merits of building the Keystone Pipeline, designed to take oil derived – with enormous environmental damage – from Canadian tar sands to Houston. It would be far better to leave the bitumen in the ground, but not building the pipeline arguably wouldn’t prevent the stuff from being mined: it might just guarantee that the product got shipped west to Vancouver and thence to China.

Right now the pipeline is being held up by environmental objections and the Obama Administration. But building it is an article of faith on the right.

The New York Times points out, in tones of shocked horror, the obvious: Keystone cannot be built without seizing right-of-way by eminent domain. Otherwise every property owner along the course of the pipe could hold out for top dollar, and the thing would be utterly uneconomic. That’s not to deny that the pipeline operator may well be abusing the eminent-domain process, or the threat of it, to offer less-than-fair compensation to the landowners.

Of course this runs into another article of the right-wing faith: that using eminent domain to seize property for private, as opposed to public, use – for economic-development projects, for example – is one short step away from the Gulag. Recall that some of the nuttier wingnuts wanted to seize Justice Souter’s home to punish him for his opinion in the Kelo case. I’d been wondering whether any of the anti-Kelo fanatics would let the eminent domain principle interfere with their support for Keystone.

Volokh Conspirators Jonathan Adler and Ilya Somin note, triumphantly, that some environmentalists have begun to appreciate that eminent domain can be used for environmentally destructive purposes. But they don’t seem interested in the fact that none of their friends on the side of inalienable property rights seems to have any problem with the use of eminent domain to build Keystone (any more than they objected to George W. Bush’s use of it to enrich himself and his business partners in the Texas Rangers by seizing private property to build, not merely a stadium, but a shopping mall).

It’s perfectly consistent to think that eminent-domain powers can be used to complete projects better left unstarted, and also to think that bad projects ought to be blocked on their merits. It’s not quite so consistent to back property rights except when the big energy companies want to confiscate them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

33 thoughts on “Keystone and Kelo”

  1. Hmm. Well it may be obvious, but I hadn’t heard about this aspect of the pipeline. I tend to be against it anyway. (Gregg Easterbrook says what we really need is a natural gas pipeline. I forget from where. Other than using it, energy isn’t really my area.)

    Fwiw, eminent domain is the source of all kinds of local shenanigans. It can get pretty ugly. I don’t think it should be used lightly.

      1. The only kind of person who would benefit from eminent domain almost never being used is somebody who almost never needs roads, rails, electric power, or air transportation.

        Are they allowing Ted Kaczynski Internet access these days, under the name of CharlesWT?

        1. Well, we already have all those things where I live. And the ED isn’t getting proposed for anything nearly so publicly beneficial. Out here they try to use it to extract (non-blighted) hotels so that a mall can be expanded in its place. Like I give a hooey. See: Glendale.

    1. If energy’s not your area, my tip is never to listen to anything Gregg Easterbrook says. Or Don Easterbrook. Steve Easterbrook is the only one of the three to hang your hat on.

      1. Well, I’ll take that under advisement, but I’d like to know what your objection is, first. He seems pretty smart to me. What’s the problem with him?

        Anyhow, isn’t it fairly established that natural gas is cleaner than oil/coal burning, for energy plants? While we get our act together on renewables? So we don’t cook the planet? That was the gist of his point about why we needed a pipeline, IIRC. Is this not so?

        1. It’s “cleaner” in a conventional pollutant sense, and it’s somewhat better than coal on greenhouse gas emissions on average. That’s about the most you can say, though. Conservatively, you’re still talking about 8-10x more life cycle GHG emissions per unit energy than nuclear or renewables, and depending on who you believe, for some sources of natural gas with resource intensive extraction processes (e.g. shale gas), life cycle GHG emissions are not much better than coal.

          1. Via Juan Cole:

            This is sort of like getting the good news that you’re being poisoned, but it isn’t with arsenic but rather something much more slow-acting.

  2. James Hansen:

    “If Canada proceeds, and we do nothing, it will be game over for the climate.

    Canada’s tar sands, deposits of sand saturated with bitumen, contain twice the amount of carbon dioxide emitted by global oil use in our entire history. If we were to fully exploit this new oil source, and continue to burn our conventional oil, gas and coal supplies, concentrations of carbon dioxide in the atmosphere eventually would reach levels higher than in the Pliocene era, more than 2.5 million years ago, when sea level was at least 50 feet higher than it is now.”

    This pipeline has larger issues attached to it than eminent domain!

    1. But stopping the Keystone pipeline doesn’t stop the extraction of oil from the tar sands. It just re-routes it through a more difficult (mountainous) route. Unless that too is blocked.

      1. The priest and the Levite: the guy in the road will probably due anyway.
        Good Samaritan: he may die if I rescue him, but he’ll certainly die if I don’t.

  3. = = = Recall that some of the nuttier wingnuts wanted to seize Justice Souter’s home to punish him for his opinion in the Kelo case. = = =
    I’m about as liberal as it gets around here I think, and I have deep doubts about the Kelo decision; I’m not sure that having those doubts makes me a nutty wingnut fanatic. I’ve also lived in several places where private land was seized to provide disbenefits to the surrounding population (e.g. a toxic waste incinerator) so I’m not so sure what you find objectionable about a plan to use Kelo to seize a Supreme Court Justice’s house; I myself couldn’t help notice that that toxic waste incinerator wasn’t built anywhere near the lakeshore mansions of the men who ran the (private) company that built it.


    1. What I find offensive is not disagreeing with the Kelo result, but proposing to punish a judge for making a ruling.

      1. But per the judge’s own position, if he got fair market value it wouldn’t have been a “punishment”. He would have been fully compensated for losing his home, and left indifferent to the taking.

        It’s only a punishment if you assume Souter was wrong. And that’s the point: Everybody knows that “fair market value” doesn’t actually pay people the value of their property, people subject to eminent domain are routinely cheated. Cheating them is the point of using eminent domain, if you were genuinely paying them fair market value, they’d sell voluntarily. That’s how actual “market values” are defined.

        Seizing Souter’s home wasn’t meant to be punitive, it was meant to be educational.

  4. It would be far better to leave the bitumen in the ground, but not building the pipeline arguably wouldn’t prevent the stuff from being mined: it might just guarantee that the product got shipped west to Vancouver and thence to China.

    AFAICT it will get refined to diesel and gasoline in a no-tax trade zone, and go out of Houston to Latin America and Europe instead of to China. 6 of one, 1/2 dz of the other.

  5. This seems to misstate the main problem with Kelo and other uses of eminent domain: when ED is used for a true public good (like a highway), then it is used properly; when it is used to seize property for some private development, based on the justification that there will be higher tax revenues from that private development, then it is being abused. That was the problem with Kelo, and also with that example of NYC using it for the benefit of the NYT. We’d need to take a closer look at the specifics of the pipeline project to see whether the use of ED in this case would be an abuse, or its intended (and obviously Constitutional – see, Takings Clause) use.

    1. Eminent domain is only used when a buyer would rather take property by force than pay the property owner what the owner is willing to sale it for.

  6. Hmm. Re-read and don’t think my point was clear. I think that the argument is about a true and material public benefit (misused “true public good” – don’t know how to make an edit here?) from the project. Through-ways (canals, railroad tracks, highways) have been very traditional uses. To me, the pipeline seems closer to those examples than to a shopping mall or new NYT HQ – but I don’t know many details behind the pipeline other than that it’s a pipeline.

    1. You could argue ED is more defensible when geographic continuity is a requirement – pipelines, railroads, power lines, etc.
      And less defensible when any one spot is as good as another – NYT HQ.

      There are grays in between. A blighted inner city area that needs a rebuild, a large mall requiring contiguous space, etc.

  7. The pro-Kelo argument is that just compensation is the only requirement; the more restrictive position is that public purpose and jsut compensation are both required.

    It seems to me that pipelines (like highways, canals, railroads, and power lines) are pretty classic public purposes.

  8. The more restrictive position is actually that public USE and just compensation are both required. Substituting public “purpose” for use was a key element of the pro-Kelo argument, since the property was taken to be given to a private company, rather than to be used by the government.

    Of course, even by this standard a pipeline or rail line could qualify, if run as a public utility serving all comers.

    1. the planets must be in a harmonic convergence brett. assuming i understand the points you’re making here, you are saying that kelo changed the standards involved in exercising eminent domain to allow private parties to be the recipient of the taken property. if that’s the case, we agree on that. if, further, you’re saying that if the keystone pipeline were to be run as a public utility then it would have qualified for eminent domain under the pre-kelo standard. if that’s correct we agree on that as well. as to whether the whole tar sands deal and the pipeline as an entity are good ideas, i suspect we differ in many ways.

      still, after all the back and forth on the romney bullying post i find it interesting to be in agreement with you on anything.

      you still have time to add to your remarks so that it seems we have nothing in common on any of this 😉

        1. any link to an article from the daily caller would have sufficed. still, i ask you human to human, did we actually agree on two things in one comment thread or was it just an illusion?

          1. Sure, we agreed. As I’ve remarked before, I like to argue, I come here because I find a lot to sincerely disagree with. That hardly means I disagree with everything.

          2. Glad to see you two have kissed and made up. The banishment talk was a bit uncomfortable and completely unnecessary.

            Now — back to the fight! Does your agreement mean both of you are right or both of you are wrong?

        2. Anyway, tell the truth: Don’t you find Obama adding references to himself at the end of most of the Presidential bios just a little squicky?

          1. The point is that they’re not his bios, they’re the other Presidents’ bios. Theoretically, they’re not about him, there’s no reason he should be mentioned in them. Did previous Presidents insert mentions of themselves into their predecessors’ biographies? I suspect not, but I’m open to proof of the contrary. Heck, THIS President didn’t until recently, according to the Wayback Machine. (Can’t tell exactly when he started this, as they’ve now got the robots.txt file set up to stop the Internet Archive from indexing it.)

            It looks like the biographies were altered about the time he began running for reelection… So it’s not so much “squicky” as it is a diversion of White House resources to his reelection campaign.

  9. Mark —

    I’ve actually written quite a bit, on the Volokh Conspiracy and in academic articles, critiquing folks on the Right for abandoning their purported commitment to property rights when it’s inconvenient.


    1. The indifference of the Right to the issue of property rights abuse in the title scams of the banks over the past decade has been astonishing.

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