Can companies seize your private property to build data center infrastructure?
According to legal scholar Aaron Walayat at the University of Dayton, it’s certainly a possibility.
In a new piece for The Conversation, Walayat warns that power companies in states like George and Pennsylvania have been considering the use of eminent domain — the government’s prerogative to seize land without its owners’ consent — to build more transmission lines used to power data centers.
If a landowner refuses a power company’s payout, the power company can turn to the local government to seize the land if it’s for “public use,” paying the landowner “just compensation.” These seizures are called condemnations, and most of the time they’re carried out by state and local governments, according to Walayat. In the case of transmission lines, the power company would be able to buy an easement on the landowner’s property.
But so-called “common carriers” like power and water companies can exercise this power too, he added, if governments delegate it. And while many states have placed heavy restrictions on how condemnations are used, courts have typically allowed entities like utilities and power companies to exercise it.
They’ve even allowed homes to be demolished in the name of “public use” and economic development. In 2005, the US Supreme Court sided with the the city of New London, Connecticut, allowing it to seize homes to build a private development around a Pfizer facility. But that development never materialized, and this lead to 45 states passing stricter eminent domain reform laws, Walayat noted.
Any condemnations for transmission lines will face plenty of legal challenges, but aren’t without precedent. Walayat says that the supreme courts of South Dakota and Vermont have both backed up seizures by power companies, on the grounds that their transmission lines provided some energy to in-state customers and shored-up their local power-grid.
That’s not always the case. In 1984, the Mississippi Supreme Court denied a power company’s condemnation because the transmission line, which was planned to run from Mississippi to Louisiana, wouldn’t have provided any benefit to Mississippi customers.
We’re seeing such a saga play out in Maryland. A planned 76 mile long transmission line will run through the state to bring more power to the AI data centers in northern Virginia, the veritable data center capital of the world. Landowners whose land lies in its path have vehemently opposed its construction, arguing that the state is being used as an “extension cord” for the AI data centers.
The power company behind the project, PSEG, sued landowners for access to their property so they could conduct surveys, and a federal district court allowed the company to go ahead. But the landowners launched an appeal, which is still awaiting a decision.
Every state’s different, but the Maryland case illustrates that power companies will face plenty of obstacles if they want to just steamroll over people’s land. Walayat predicted that “arguments around whether additional transmission lines actually serve in-state customers may give landowners grounds for a challenge.”
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