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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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