The Volokh Conspiracy

The Gallenthin Realty case Ilya mentions below nicely illustrates the risk that eminent domain can pose to environmental conservation if governments are allowed to take property for economic development purposes -- a problem Ilya and I discuss in our paper, The Green Costs of Kelo: Economic Development Takings and Environmental Protection, 84 Wash U. L. Rev. 623 (2006). The land at issue in this case largely consisted of undeveloped open space, including protected wetlands. The government sought to take the land for a development project because it was "not fully productive." Yet this is something that can be said of virtually all conservation properties; land that is devoted to conservation is not "fully productive," even though it may be providing many valuable functions and services. Indeed, the very point of conservation easements and the like is to protect environmental values by preventing land from being used to maximize economic production. Had the New Jersey Supreme Court held that this was a suitable justification for the use of eminent domain, this would have put made it easier for government agencies in New Jersey to take conservation lands through the power of eminent domain by labeling such lands as "blighted."