No more eminent domain for private gain?

It’s coming. Nothing that happened during this year’s session of the Missouri General Assembly can stop the Grain Belt Express from charging through rural areas of the state.

But a new bill, still on Gov. Parson’s desk as of deadline for this edition of Today’s Farmer, could thwart efforts of future projects that seek to use eminent domain for private gain. The legislation was written in response to a long fight over the Grain Belt Express, a transmission line for wind power that will stretch across 200 miles in northern Missouri, impact­ing 570 landowners.

Efforts to stop construction of the line have been ongoing since 2019, when Invenergy Transmission, the company behind the project, received permission from the Public Service Comission to use eminent domain, if necessary, to acquire the land it needed. Many landowners don’t want to sell.

The new law, however, will not affect Grain Belt—only projects that submit applications to the state after Aug. 28.

For farmers and agricultural orga­nizations who have long been advo­cating for eminent domain reform, the passage of the bill represents a bittersweet victory. Similar legislation has failed several times, so getting the measure passed this year is a big win—even though it has little impact on the one project that started the whole debate.

Going forward, under the bill’s provisions, a private company that uses eminent domain to take land to build a transmission line must pay the landowners at least 150% of fair market value. A farmer who has lived in the area at least 10 years would be involved in determining that value. And if a project does not receive financial commitments within seven years of using eminent domain, the land is returned to the owner.

Plus, new projects crossing Missouri must have a proportional public benefit for residents. Simply put, a project must deliver power to the state in proportion to how much of that project is located here. If 30% of the line runs through Missouri, 30% or more of the power must go to Missourians.

The final version of the legislation is a revised compromise from the original. The initial proposal would have prohibited electrical projects that weren’t approved by county commissioners, regardless of whether it was cleared by the state’s Public Service Commission. The bill also required that at least 50% of the en­ergy created by a transmission line go to Missouri. The substitute bill that was passed removed the veto power for county commissioners and added the “proportional” requirement for the amount of power reserved for Missouri.

Eminent domain has long been used in the United States to acquire property for public use, such as roads, bridges, utilities, parks and public buildings. The concept is even protected by the Fifth Amendment to the U.S. Constitution, with the stip­ulation that private property cannot be taken for public use “without just compensation.” When used properly and fairly, eminent domain can result in tremendous public good, such as building a much-needed hospital in an area where one doesn’t exist.

The federal interstate highway system is a perfect example of use of eminent domain for greater public good. When the project started in 1956—right here in Missouri, by the way—it was a momentous under­taking, by some accounts the largest public works project ever. Putting in the interstate system required seizing more land by eminent domain than had been taken in the entire history of road building in the United States. Can you imagine trying to travel today without these super highways that connect our country?

The problem folks have with the Grain Belt Express is that the clean energy generated by its turbines does not benefit the landowners where the transmission lines will be built. The for-profit corporation will be taking wind power from Kansas and selling it to the East Coast. Only 7% of the power generated will go to Missouri, which opponents argued contradicts the Grain Belt Express’ status as a public utility in the state.

I agree with the bill sponsors that eminent domain should be used only for necessary public services that tru­ly benefit the common good. Private investors who do not serve Missouri citizens should not have the power of eminent domain. The new bill marks a step forward in protecting land­owners and ensuring more of a pub­lic benefit in the future, especially with multi-state transmission projects involving for-profit companies.

Still, the latest reform is insuf­ficient, because it only addresses a specific use of eminent domain. The bill enacts new protections in the case of electrical transmission lines, but does not pertain to other types of projects, such as natural gas pipelines or roads. The bill’s sponsor, Rep. Mike Haffner of Pleasant Hill, said a joint committee on agriculture planned for this summer is expected to discuss eminent domain reform more broadly.

Let’s hope they do. This new law certainly takes us in the right direction, but it’s a small piece of a much bigger picture that must be addressed.

EDITOR’S UPDATE: Gov. Parson officially signed House Bill 2005 into law on June 11, 2022, during the Missouri Cattlemen’s Association’s annual Steak Fry Dinner.