Missouri Bill Would Ban Eminent Domain, but Only for Wind and Solar Projects

The Show Me State has plenty of room to rein in laws on taking private property, but instead, lawmakers are focusing only on one very narrow use case.

Lawmakers in the Missouri House of Representatives passed a law curtailing the government's ability to take private property. Unfortunately, the bill seems more like a culture war posturing than a genuine reclamation of private property rights, and it does not go nearly far enough.

House Bill 1750, sponsored by state Rep. Mike Haffner (R–Pleasant Hill), passed the House on Thursday by a comfortable 115–27 margin. The bill would amend the state's law on eminent domain to exclude "any plant, tower, panel, or facility that utilizes, captures, or converts" either wind or solar energy "to generate or manufacture electricity."

Eminent domain is the government's power to seize private property for public use, authorized by the Takings Clause of the Fifth Amendment. Traditionally, a government would take private land in order to, for example, build a highway or run utility lines; the property owners would have to go along with it but would be entitled to "just compensation."

But in 2005, the Supreme Court decided in Kelo v. City of New London that eminent domain could include seizing private property to give to private developers; Justice John Paul Stevens wrote that "there is no basis for exempting economic development from our traditionally broad understanding of public purpose." Connecticut homeowner Susette Kelo originally brought the lawsuit when the City of New London moved to seize her house, among others, so that pharmaceutical giant Pfizer could build a research and development facility. By 2009, Pfizer abandoned its plans for the area, leaving Kelo's former property an empty lot.

Some states offer citizens greater protection from seizure. In 2006, one year after the Kelo decision, Florida passed H.B. 1567, which removed the state's ability to condemn properties for "blight" and required cities to wait at least 10 years after taking a property before transferring it to another owner. The following year, New Mexico passed H.B. 393, which "remov[ed] the ability to condemn property for economic development" in state law.

Unfortunately, not every state responded to Kelo with such forthright protections for private property. "Missouri is a state sorely in need of eminent domain reform," according to the Institute for Justice (I.J.), a public-interest law firm. "For years, redevelopment agencies throughout the state have used bogus blight designations to acquire private property for private development. Further enabling abuse, provisions in the Missouri Constitution authorize eminent domain for blight clearance and redevelopment."

To that end, Haffner's bill could have strengthened private property rights in the state by meaningfully constraining the government's power. Instead, the bill would have little actual effect and reads more like Haffner is simply virtue signaling to his base.

"In recent years, we've seen a troubling trend of companies attempting to leverage eminent domain to advance their private interests in renewable energy projects," Haffner stated in a press release after his bill passed. "We believe that solar and wind turbine companies should negotiate with landowners rather than resorting to eminent domain to acquire property. This bill restores balance by limiting eminent domain to essential public utilities and infrastructure, safeguarding the property rights of Missouri citizens."

That's a noble goal. But Haffner's bill would only constrain the state's eminent domain powers for solar or wind developments; if a pharmaceutical company wanted to bulldoze a neighborhood to build a research facility—as happened to Susette Kelo—nothing in the bill would prevent that.

Not only that, but so far, no wind or solar developer has even tried to obtain land in Missouri through eminent domain. "This has not happened," Haffner acknowledged before the vote, according to KSMU. "But property rights are so important…we want to make sure that it doesn't happen."

State Rep. Peter Merideth (D–St. Louis) criticized Haffner's bill for "singling out this specific type of energy and saying we want them to have different constraints on the use of eminent domain than an oil pipeline or a coal-generating plant."

Missouri Republicans previously tried to reform eminent domain laws, but similarly only in reference to one particular project: the Grain Belt Express, a transmission line that would have run 4,000 megawatts of renewable energy through the Midwest. Last year, the project finally won approval after lawmakers passed legislation that would require greater compensation for homeowners whose property is taken and would terminate the developer's rights to the land if construction did not begin within seven years.