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2020 Wis. L. Rev. 49 (2020)
Eminent Domain Law as Climate Policy

handle is hein.journals/wlr2020 and id is 55 raw text is: EMINENT DOMAIN LAW AS CLIMATE POLICY ALEXANDRA B. KLASS* In 2019, several states adopted aggressive clean energy laws and other states are poised to do the same. These policies require electric utilities to se- cure all of the electricity they sell to customers from carbon-free energy re- sources by a specified date, and many also require the state to drastically re- duce carbon emissions from the transportation sector, increase energy efficiency in buildings, and otherwise decarbonize their economies. In order to meet these mandates, states must transform the physical infrastructure used to create and transport energy. This will require building new power plants that run on carbon-free energy resources like wind, solar, hydropower, or nu- clear energy; constructing the electric transmission lines and other infrastruc- ture needed to deliver these energy resources to consumers; setting standards and mandates for new buildings, vehicles, and transportation infrastructure that will reduce carbon emissions; and providing direct funding, tax incen- tives, new permitting processes, and staff to support the public and private actors that will implement these changes. These needs are becoming well documented. What remains completely unexplored, however, is the potential for state property law reform-most notably eminent domain law-to limit the development of fossil fuels and promote the growth of alternative energy to support these new clean energy policies. This Article contends that states should consider eliminating eminent domain rights for fossil fuel projects and extending eminent domain rights for certain clean energy projects as part of their state climate policies. Moreover, each state's approach to eminent do- main reform may differ based on the current energy mix in the state as well as the potential for technological development. These policy conversations regarding the use of eminent domain for energy projects are critical to devel- oping robust state clean energy laws. They also can provide a useful template for Congress if, in the future, it decides to enact federal climate policy. Introduction .......................................................................................... 50 I. State Clim ate Policies ............................................................... 53 II. Use of Eminent Domain for Energy Development ................... 57 A. State and Federal Eminent Domain Authority for Energy Projects .............................................................................. 58 B. Lawsuits Challenging the Use of Eminent Domain for Energy D evelopm ent ........................................................ 61 1. Federal Court Legal Challenges to New Natural Gas Pipelines...................................................................... 65 * Distinguished McKnight University Professor, University of Minnesota Law School. I received helpful comments on earlier drafts of this Article from Eric Biber, Sara Bronin, Peter Byrne, James Coleman, Nestor Davidson, Daniel Farber, Lisa Hein- zerling, Sharon Jacobs, Tim Mulvaney, Richard Revesz, JB Ruhl, Christopher Serkin, Larry Shapiro, David Spence, Michael Vandenbergh, Shelley Welton, and Katrina Wy- man.

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