Greg Willis | Wikimedia CommonsGreg Willis | Wikimedia CommonsLast weekend, Reason broke the news that Alabama has rescinded its strong statutory protections against the use of eminent domain for private development. I stand by that claim, but based on subsequent local news reports, SB 96 appears to be an inartfully crafted law rather than a nefarious attempt to bring back Kelo-style land grabs.

According to one legislator, any expansion of eminent domain authority was inadvertent and will be excised. Legal minds in Alabama are split, however, on whether the new law, which offers tax subsidies for manufacturers willing to locate their operations in the state, does indeed expand the state's eminent domain power.

To me, this language is pretty unequivocal (italics denote SB 96’s changes to existing law):

It is further found and declared that the powers conferred by this chapter are for public … and private uses and purposes imbued with a public interest … and the power of eminent domain and police power exercised, is hereby declared as a matter of legislative determination.

Those private uses include:

Automotive, aviation, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities.

Since there is uncertainty about what this passage means, a quick legislative fix is in order. According to Dana Berliner, a senior attorney at the Institute for Justice, “If the legislature truly did not intend to authorize eminent domain with this bill, they need to fix it immediately.”

Otherwise, it will be up to judges to determine what the law says, which means forcing property owners to defend their homes and businesses in court when local officials with an expansive view of SB 96 decide to replace a neighborhood with an industrial park.  

Disclosure: I am a former employee of the Institute for Justice.