Eminent Domain, Abraham Lincoln, and Virginia’s Pipelines

In politics as in life, hypocrisy is looked down upon because it creates confusion and seems to run contrary to our most basic standards of decorum and honor, even if it is not technically lying. Hypocrisy does not mean that the hypocrite cannot still make morally correct statements (for instance: a murderer can still say that murder is wrong and be correct even though it’s hypocritical), but it does greatly detract from the personal credibility of the hypocrite in question. So why are we conservatives silently tolerating the destruction of property rights, one of our much-vaunted values in the conservative movement, in the drive to build two major pipelines from the Marcellus shale (West Virginia, Eastern Ohio, E. KY, PA) to the east coast across Virginia?
Last year, I wrote a piece in my publication, the Spectator, in full-throated support of the two major pipelines slated to bisect Virginia’s western mountains, the Mountain Valley Pipeline, which is supposed to go across Virginia from West Virginia, through the Roanoke/Blacksburg area and down into the Danville region, and the Atlantic Coast Pipeline, which will come from West Virginia across Highland and Augusta counties (Staunton) and down across the Blue Ridge into Norfolk and markets in North Carolina. These pipelines would create a modest number of construction and upkeep jobs, have a minimal impact on the environment if done correctly (in other words, use mowing rather than herbicide sprays, which will run off into streams and rivers, to control plant encroachment around the pipeline, which would also create more jobs), decrease our reliance on dirtier fossil fuels like oil and coal, and decrease the odds of more catastrophic derailments of railroad natural gas shipments, not to mention making energy cheaper and decreasing the amount of trucks hauling flammable cargo. But I also included an important caveat to my argument in support of the pipelines, and energy development more broadly: no eminent domain.

As the first Republican President, Abraham Lincoln said in one of his characteristically plainspoken statements, “Republicans are for both the man and the dollar, but in the case of conflict the man before the dollar.” Robbing a family of their land, of their lifestyle and home without payment, or with payment against their will (which indicates a trade that is not mutually beneficial, as opposed to voluntary transactions) is the ultimate example of putting the matter the other way around: putting the dollar before the man. Virginia’s Republican Party should live up to Lincoln’s principles by denouncing the pipeline developers’ use of eminent domain while maintaining its support for “all of the above” energy development more broadly and advocating the deregulation necessary to end eminent domain.
A Roanoke County woman sitting on her own property, to which she presumably has the legal title, being deemed illegal and facing jail time because her actions hinder the construction of a private business’ profit-driving equipment is not exactly my idea of America. It is much more reminiscent of Africa, or perhaps Latin America. For those of you who are unaware, there is currently a mother and daughter, of the Terry family, holed up in tree houses thirty feet above ground in Roanoke County in a gambit to save their land from being bisected by the Mountain Valley pipeline. The Terries refused payment for the pipeline right-of-way, as approximately 15% of landowners have (to this point; they may still acquiesce to payment). I think their concerns about environmental damage are overblown, and if it were my 1,000+ acres, even though they had been in the family over 300 years, I would take the money in exchange for a hundred and twenty-five-foot-wide pipeline affecting a small part of my land. But it’s not my land, so it’s not my call, and neither should it be anyone else’s, least of all the government’s or a private corporation’s.
Property rights and their consistent, reliable protection by government, not their periodic subversion, are the basis for any civilized society. Developmental economic theory and empirical studies from around the world tell us that where property rights are uncertain, development is hindered, people are poorer, and the poorest in society are taken advantage of by the well-connected and the wealthy. Want to buy a few acres in Venezuela anyone? Why not? Because you can’t be sure that what you paid for will be respected as yours. This discourages real, organic development, creates uncertainty, and stifles the freedom and happiness of those living on the fragile property. But we needn’t cross oceans to see that inviolable property rights are necessary for individual freedom to have any practical meaning. Want to know how enjoyable and predictable life is without secure land ownership that is respected by authorities? Ask the Native Americans of yesteryear. Or examine the causes of the American Revolution. Chiefly, they were: taxation without representation, King George III’s encroachment into local government and his ineffectiveness in defending against Native Americans when he did subvert local government, and the Proclamation of 1763, which prohibited colonists from settling west of the Appalachian Mountains. In the end, the American Revolution was fought over two principle ideals: self-government and private property, the right to the fruits of one’s own labor independent of royal prerogative (there is certainly a difference between the edicts of a king and laws to which the property owner was a party though voting, but this difference is blunted by the fact that today’s land grabs are authorized by executive agencies acting in behalf of the president with little to no congressional input, much as King George III acted). Americans also have no congressional appeal for these decisions by FERC, an executive agency. This is fiat government, the Progressive movement’s legacy, at work, ironically working for a conservative goal. The progressives, it appears, cannot always successfully ride the regulatory tigers they let loose. On a more mundane level, how is a farmer supposed to take out a loan for a crop or a woodland owner make a decision about when to harvest timber when he doesn’t know when his land might be taken? These sorts of shenanigans hinder rural economic development and impoverish the victims of eminent domain, despite being a net economic gain for society.

But when it comes to property rights, we aren’t supposed to make decisions based on what’s good for the society. That line of thinking is repugnant to republican liberty at its core. I have two votes and you have one….give me your land and money please—this is not the American way. One of our oldest ideals in this nation is the “white picket fence,” the “American dream,” which is our dream to catch by hard work. What does it say about our sincerity when we conservatives lecture others about how hard work will get us anything we strive for hard enough in life, then watch silently as government helps private companies steal thousands of acres of land, paid for and maintained with decades of income, hard work, memories, sweat, and tears? As an American’s dream is taken from them by force for the benefit of citizens in the metropolises? We criticize the left for hypocrisy all the time, usually deservedly, but on this one, Virginia’s conservatives have to do some soul-searching.

Of course, there is one scenario under which the absolute sanctity of property rights cannot hold: when the immediate survival of the nation necessitates military occupation of or military movement across private property. I do not know a single patriotic American, liberal or conservative, who would refuse having their domicile in Maine used as a fortress, if, say, the Canadians invaded. But if that extraordinary circumstance should arrive, the protection of the entire society’s private property and system of free government would necessitate the temporary cession of the Pine Tree State land in question. If the Japanese had a fleet off of Mendocino, California during WWII, then a stubborn landowner who objected to anti-ship guns being placed on his property would just have to lump it, so to speak. I doubt this has ever happened in US history.

That aside, this national security rationale cannot be carried into peacetime if a society is to remain free, and it certainly cannot be so broadly construed as to include energy development. There are those who would contend that energy development projects like the Mountain Valley pipeline, by letting us transport energy easier and making us less reliant on foreign energy, helps national security, and they’re probably right. But even though this indirect logic is technically correct, it is just that: indirect, and could be used to justify anything. Strong soldiers with sound mind are necessary to win wars. Donuts cause people to gain weight and spend time away from school or work developing human capital. Thus, by the “pipelines are national defense” logic, the government should be able to close down Dunkin’ Donuts and replace it with whatever it wants, and close down all restaurants with unhealthy items that do not contribute to strong soldiers, and repossess land to give to trucking companies for distribution centers, since internal improvements help our national security, and so forth. This logic has no end. So long as that something can be shown, however indirectly, to benefit to national security, this argument justifies theft. This cannot stand in a nation that claims to be free.

Ironically, part of the reason that the pipeline companies feel forced into using eminent domain is because of onerous federal regulations on infrastructure construction and pipeline routing. In particular, environmental impact statement costs and complicated process make it infeasible to continually change pipeline routes, even by one mile here or there to find landowners willing to voluntarily accept payment, because for every change, the entire environmental impact statement would have to be re-done, with all its attendant costs, delays, and red tape. In the absence of such requirements for environmental impact statements, pipeline companies would be able to re-route pipelines to find willing landowners and avoid using eminent domain. They would still be under the Endangered Species Act of 1973, which would ensure that, at least on federal land like the Jefferson and George Washington National Forests, pipelines are built in such a route as to minimize the impact on endangered animals, but would be free to renegotiate routes on private land. In the current scheme, this would be unimaginably expensive and rule out any energy development whatever. Faced with the alternative of closing up shop, energy companies understandably stick to a single route once all the impact statements and other documents are in order and use whatever techniques available to make the project happen.

Additionally, the Federal Energy Regulation Commission (FERC), the government agency that, after an environmental review, study, and public comment period, grants the pipeline company a “certificate of public convenience and necessity,” which is a license from the federal government to use eminent domain, has a key role in the process. Without the federal government’s help, the energy companies would have no force to back up their threats of land seizure against “noncompliant” landowners. In the absence of such coercive license, the pipeline owners would be forced to do what is just—find landowners willing to lease rights of way, or don’t build at all. In other words, respect mutual private property rights. The Terries wouldn’t be up in tree stands but for executive agencies designed to regulate energy development. Some regulation. Much as Ronald Reagan said generally, “Government is not the solution to the problem. Government is the problem.” In this case, his words ring tragically true. The best way to protect the environment, produce more energy to reduce dependence on oil and coal, create jobs, and respect private property rights and all the familial tradition, emotion, memories, and deeper connection tied up in the land, is to abolish FERC, end eminent domain except when Congress has passed an honest to goodness Declaration of war and the nation is in imminent danger, and let landowners determine how much their land is worth for themselves. To do otherwise is to sell out our most basic values as conservatives, and as Americans, in exchange for the promise of temporarily cheaper energy. That’s not a bargain I’m willing to make, no matter how much I like energy development. End eminent domain.

Feature picture attributable to: By [1], Public Domain, https://commons.wikimedia.org/w/index.php?curid=42812335.