We don’t have enough fights to keep us busy over here, so yesterday we jumped into the middle of another one. And it’s a doozy – the Dakota Access pipeline, no less. We filed an amicus brief with the Iowa Supreme Court, arguing that the government should not be allowed to take your property just because someone else says that they can make it more economically productive. That is exactly what happened to the Iowa farmers who were unlucky enough to own land on the Dakota Access route between North Dakota’s Bakken shale and a crude oil hub in Illinois.
The Fifth Amendment – and Article I, section 18 of the Iowa Constitution – both say that the government can’t take private property unless it’s for a “public use,” but the Iowa Utilities Board said that the state’s overall prosperity was enough of a public use for them. Building the pipeline meant that “thousands of construction jobs will be created, many of them to be filled by Iowans,” and that “Long term, the project will generate substantial tax revenues and will directly generate at least 12 permanent jobs.”
Many people will remember the Supreme Court’s notorious decision in Kelo v. City of New London, when the Court decided (5-4) that such economic benefits satisfied the “public use” requirement, at least under the federal Constitution. That sparked one of America’s great political and legal backlashes, dozens of states rushed to amend their state laws and state Constitutions to prevent just such abuse.¹
Niskanen is encouraging the Iowa Supreme Court to go back and look at what was said about “public use” at the state’s 1857 Constitutional Convention. Among other things, the delegates voted down a proposal that would have allowed just the kind of taking that occurred here: using eminent domain to take someone’s property not because it would be put to a “public use”, but because someone else could use it more profitably. Hmmm . . . .
The Iowa Supreme Court has a long history of reading their state constitution to provide greater protection for individual rights and liberties than the Supreme Court has found in the federal Constitution. Let’s hope that the right to private property makes the cut.
¹A shout-out to our colleagues at the Institute for Justice, who represented the plaintiffs in Kelo and dozens of similar cases since then.