Keystone and Kelo

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).

[Cross-posted at The Reality-based community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.