Eminent Domain Law as Climate Policy

In 2019, several state legislatures adopted aggressive clean energy laws and other states are poised to do the same. These policies require electric utilities to secure all of the electricity they sell to customers from carbon-free energy resources by a specified date and many also require the state to drastically reduce 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 nuclear energy; constructing the electric transmission lines and other infrastructure 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 incentives, 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 existing eminent domain rights for fossil fuel projects and extending eminent domain rights for clean energy projects as part of their state climate policies. Moreover, each state’s approach to eminent domain 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 developing 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.