Embracing Eminent Domain for the Sake of the Planet

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Introduced by Rep. Alexandria Ocasio-Cortez (D–NY) and Sen. Ed Markey (D–MA) on February 7th, the Joint Resolution for a Green New Deal is, in a word, bold. By merging the concepts of equity and justice, the GND Resolution promotes a transition to 100 percent renewable energy. In doing so, it guarantees clean air and clean water for all while creating millions of well-paying jobs. David Roberts of Vox says that the resolution is “unmistakably progressive” and matches the scale of action dictated necessary by the IPCC report.

Much of the initial skepticism around the GND came from those fearful of repeating the mistakes of the original New Deal. As Richard Rothstein notes, the New Deal “was a state-sponsored system of segregation.” Many of contemporary society’s structural inequities were amplified by the New Deal, including both racial and wealth inequalities. Thus for both skeptics and advocates it was crucial to see the acknowledgement in the text of the resolution saying that “members of frontline and vulnerable communities were excluded from many of the economic and societal benefits” of the original New Deal.

However, as important as acknowledgement is, to embody a truly just transition away from fossil fuels, the Green New Deal must look to indigenous and frontline leadership to figure out how to “keep it in the ground.” By this, of course, I mean stopping further extraction of fossil fuel reserves.

In response to the GND resolution, the Indigenous Environmental Network demanded: “that fossil fuels be kept underground and that the subsidies and tax breaks that keep the fossil fuel industry viable be shifted towards a clear, grassroots-based Just Transition.” This echoed what Kali Akuno, of Cooperation Jackson and the Climate Justice Alliance said in an interview in December: “There is no question about it. That has to be target number one. We have to adopt a program of ‘keep it in the ground.’ There is no way to get around that. That’s a demand coming from Indigenous communities.”

If keeping it in the ground is to be the number one priority, proponents of the GND must think outside the box. Harnessing the power of eminent domain is exactly the kind of transformative and creative strategy we need to embrace in order to do so.

Eminent domain is the legal power of the government to take private property for public use. According to the Department of Justice, eminent domain has traditionally been used for two purposes. The first is to “facilitate transportation, supply water, construct public buildings, and aid in defense readiness.”

Much as the skepticism around repurposing the New Deal name was warranted for not wanting to repeat past mistakes, invoking eminent domain as a tactic will certainly be met with similar concern from both activists and scholars.

Following the 1954 Supreme Court ruling in Berman v. Parker, cities and states have used and abused eminent domain to enable processes of “slum clearance” and urban renewal. That ruling permitted the government to take any property, even if well maintained, if the surrounding neighborhood had been deemed to have fallen into “blighted” condition. In a 2005 brief, the NAACP testified, “The history of eminent domain is rife with abuse specifically targeting minority neighborhoods. Indeed, the displacement of African Americans and urban renewal projects were so intertwined that urban renewal was often referred to as ‘Negro removal.’” In 2005’s Kelo v. City of New London decision, the Court not only upheld Berman v. Parker, but also expanded it, ruling that economic development—whether private or public—is a permissible use for eminent domain. This opened the floodgates for further abuse, as eminent domain has since been a primary tactic used by developers like Donald Trump to increase their profits while fueling displacement. By stating that economic development is a public use, eminent domain can be utilized by any corporation—all they need to argue is that they will grow the economy.

Given this history, the use of eminent domain should be anathema to leftists. However, there is a secondary aspect of eminent domain that can and should be embraced. The second usage is for “establishing parks and setting aside open space for future generations, preserving places of historic interest and remarkable natural beauty, and protecting environmentally sensitive areas.” As climate change accelerates, utilizing eminent domain becomes necessary to set aside open space for future sustainability.

What if the power that this mechanism has for harm can also be harnessed as an unlikely ally in times of ecological collapse? Or as Greater Detroit DSA put it in a recent video: “After all, GM used eminent domain in the 80s to destroy a low-income neighborhood in Hamtramck. If they can destroy an entire community to build a plant, only to abandon it later, why can’t we use eminent domain to take it back and use it for the people?” Activists should not ignore or shy away from the ability to quickly change land usage in order to fight the climate crisis.

Eminent domain is the best strategy for keeping it in the ground because it goes after the opposition directly. As the GND continues to gain support, activists and supporters must recognize the steps the fossil fuel industry is willing to go to in order to avoid any transition. In recent years, both the Republican Party and the fossil fuel industry have doubled down on supporting the production of fossil fuels. Last year alone, American oil production increased by two million barrels, making the U.S. the world’s top producer of oil at nearly twelve million barrels daily.

In 2014, ExxonMobil issued a statement to investors, saying, “We are confident that none of our hydrocarbon reserves are now or will become 'stranded'. We believe producing these assets is essential to meeting growing energy demand worldwide.” As Rebecca Solnit eloquently states, “Stranded assets that mean carbon assets—coal, oil, gas still underground—would become worthless if we decided they could not be extracted and burned in the near future…Exxon has decided to bet that we can't make the corporation keep its reserves in the ground.” ExxonMobil is not alone: all the major fossil fuel companies have bet on the continuation of the status quo and on the continued profitability of their extractive model.

For oil companies like ExxonMobil, market capitalization is almost completely dependent on fossil fuel reserves. Market capitalization, used to determine the worth of a publicly traded company (i.e., one whose shares can be bought and sold on the stock market) is a company’s share price multiplied by the number of outstanding shares. In contrast to a valuation based on current production or historical sales, market capitalization looks to potential future earnings.

As oil is a finite resource, each oil company needs to seek out and buy up as many fossil fuel reserves in order to ensure the company’s value and future earning potential can continue to grow.

However, it does not need to be this way. Dr. Fatih Birol, the head of the International Energy Agency said that “analysis has shown 70 percent of global energy investments will be government-driven, and our energy destiny lies with government decisions.” As energy decisions will be dictated by governments moving forward, it makes sense that there are competing visions of the future. Republicans and the fossil fuel companies are betting on continued expansion of fossil capital. There is an alternative available: it can be realized through a GND that utilizes eminent domain to keep it in the ground. This future challenges the fossil fuel companies at the source and places future generational sustainability over present profits.

On January 8, 2019, conservative blogger and radio host Erick Erickson tweeted, “If the President declares a national emergency and starts using eminent domain and reprogrammed dollars to build a wall, it is only a matter of time before a progressive President declares climate change a national emergency and uses eminent domain to shutter coal plants, etc.” The tweet received over 10,000 favorites and over 2,400 retweets before it was deleted one week later. One can only conjecture his reason for deleting it—maybe he realized he was giving his opposition some ammunition.

President Trump has now declared a national disaster along the southern border and plans on invoking eminent domain to build his border wall. Even conservatives passionate about a wall are wary of doing this. Dana Loesch, NRA spokesperson tweeted on February 14th, “What if Democrats one day decide to say that climate change is a national emergency (they already have) but have the power to use executive action? Must be very, very careful here.”

Loesch recognized the severity of this action. As did Rep. Ilhan Omar (D–MN), who just one day later tweeted, “Our next President should declare a #NationalEmergency on day 1 to address the existential threat to all life on the planet posed by Climate Change.”

As Omar notes, climate change is a national emergency. The Green New Deal Resolution, as a policy response, clearly showcases why.

We need to utilize all the tools imaginable to fight this crisis. The GND should harness this legal pathway of eminent domain to buy up fossil fuel reserves at fair market value for land (not future earnings) to prioritize future sustainability. This would mean the just compensation would be far cheaper than the speculative prices the lands are currently going for, and as constitutional law professor Laurence Tribe says, “The government has all of the power in these conversations.”

Exxon and fellow plunderous companies have continued betting against the “stranded assets” their fossil fuel reserves could become if there’s finally a serious threat to their industry. The inclusion of eminent domain into the climate policy conversation as a credible possibility could cause fossil fuel stock prices to dive into free-fall, as no one wants to be left with worthless assets.

Alongside the fossil fuel divestment movement, adding the use of eminent domain to the conversation can add secondary pressure to the existence of the fossil fuel industry. Should oil and gas stock prices plummet and reserve sizes stall, the necessary shift to 100 percent renewables would jump into hyperdrive to stave off an economic recession and meet the energy demands of American consumers.

While some on the left have floated the idea of nationalizing the fossil fuel industry to wrestle power away from these fossil fuel behemoths, eminent domain may be an easier immediate path forward. Like nationalization, the use of eminent domain deploys a currently existing legal mechanism to control and limit the extraction of destructive fossil fuels. However, unlike nationalization, which gets caught in right wing talking points of petro-states, planned societies, and Venezuela, eminent domain re-centers the conversation on future sustainability.

For Democrats, the suggested use of eminent domain idea brings the ultimate question to the fore: will future generational sustainability be passed over in order to further enrich fossil fuel capital?

Eminent domain also provides a path towards achieving some of the Green New Deal necessities that are currently missing for indigenous and frontline communities. Native American reservations are only 2 percent of the nation’s land but hold over 20 percent of its fossil fuel reserves. These lands have consistently been exploited for continued extraction. The use of eminent domain to protect remaining fossil fuel reserves can also initiate opportunities for the U.S. government and citizens to make amends for past injustices toward Native Americans—by returning land to tribal sovereignty as a form of reparations, for example.

As a legal matter, if eminent domain is challenged, there is a clear case for invoking the Antiquities Act for preserving “historic landmarks, historic and prehistoric structures, or other objects of historic or scientific interest.” Recent polling of the monument designation, the key to the Antiquities Act, showed it having mass support.

While eminent domain by itself cannot and will not initiate a just transition, it can challenge the fossil fuel corporations directly. It can also recenter the conversation on “keeping it in the ground” as indigenous and frontline communities have been calling for. At minimum, for this reason alone it is a valuable and necessary addition to GND discourse. For something so ambitious, the Green New Deal must utilize all the tools in the toolbox to take down the most corrosive industry in history. In this case, it means embracing eminent domain for the sake of the planet.

Aaron Eisenberg is a Brooklyn-based cultural exchange professional. He has taught at Brooklyn College and organizes with NYC Democratic Socialists of America. He tweets @ae53.

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