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Montana Viewpoint
EMINENT DOMAIN AND THE ENERGY BILL

August 22, 2005

Remember all the anger at the recent Supreme Court decision in Kelo v. Town of New London? That was the decision that upheld government’s right to condemn private property for economic development such as shopping malls. As I said in my Montana Viewpoint article on the subject (Eminent Domain—That Land Was Your Land, July 11, 2005) I’ve seldom witnessed such a public display of concern over a Supreme Court decision.

State legislatures moved quickly to pass laws preventing just what happened in Kelo. Congress, too, acted quickly to side with the private property owner. The House of Representatives passed a resolution condemning, so to speak, the Court’s decision on condemnation by a vote of 315 to 33. Other bills were introduced that limited certain federal dollars for economic development projects that have been acquired through condemnation by local governments. It was nice while it lasted.

Fortunately for producers and shippers of electricity, it seems Congress didn’t really mean it. Among the many excesses of the Energy Act of 2005 Congress granted the United States Government sweeping new powers to condemn private land for electrical transmission lines.

Section 1221 of the bill requires the Department of Energy to conduct a study every three years to find areas of interstate electrical energy transmission congestion. If such areas are found, the Secretary of Energy may declare such an area as a “national interest electric transmission corridor.”

The Secretary may then issue a permit for construction of a new power line to an “applicant” if the state through which the line is to pass can’t or won’t grant the applicant a permit. The Secretary of Energy may then confer the right of eminent domain to the permit holder. So, even though Montanans might not want a new power line running through “the last best place,” the Feds have the say, not Montanans.

Because it is reasonable to assume that the applicant is going to be a large company already in the electrical energy business, an important question is which company? That’s important in two ways. First, if there is more than one applicant for the permit, who decides which company gets it? It will be worth one heck of a lot of money. I can see the lobbying effort now.

Second, what’s the track record of the company as far as making sound and ethical decisions? It is good to remember the gift of deregulation from the Montana Power Company, the bankruptcy of NorthWestern Energy, and the price manipulations of some electricity companies during the 2001 “energy crisis.”

The energy Bill passed the Senate 74-26 and the House 275-156 with all three of Montana’s federal legislators voting for it.

This usurpation of states rights and private property has been condemned by both the conservative Cato Institute and the consumer advocate U. S. Public Interest Research Group, and, for the record, me.

So, riddle me this: if the left and right can agree that something is rotten, why do Senators and Congressmen vote for it anyway? You know the answer as well as I do, but in the wake of Congress’ response to Kelo, it seems incredibly two faced. Sure, it’s not a shopping mall or a hotel, but it’s still the condemnation of private property for industry’s gain.

Jim Elliott
Phone: 406-444-1556
Mail: State Senate Helena, MT 59620

jim@jimelliott.org