Introduction: Condemning Open Space
By Daniel Shean, Editor-in-Chief
INTRODUCTION
Dominion Virginia Power's planned construction of an electricity transmission line through scenic open space and conservation easement-protected lands in Virginia is a topic of great interest and importance to many Virginia residents and their legislators. To provide a forum to discuss the contentious issue of the possible condemnation of land for the transmission line, the Virginia Environmental Law Journal held a Symposium, entitled “Condemning Open Space,” in the fall of 2007. The Symposium provided a forum for a wide variety of perspectives on the proposed transmission line, the condemnation of conservation easement-encumbered land, and the payment of just compensation upon any such condemnation. This particular issue of the Journal grows out of some of the ideas and conclusions expressed by the Symposium participants. This introduction will provide some background information on the topic of the Symposium, as well as a brief summary of the views expressed by the “Condemning Open Space” Symposium participants and the contributing authors to this issue.
In 2006, Dominion Power announced plans to construct new electricity transmission lines stretching from Virginia to New Jersey. The 240 mile line planned for Virginia would stretch through several northern Virginia counties, many of which are encumbered by conservation easements. Dominion's plans for the new lines came on the heels of the passage of a controversial section of the Energy Policy Act of 2005 governing the siting of interstate electric transmission facilities. The Symposium participants grappled with the implications of the interaction of this new federal provision with Virginia law governing conservation easements, including the Open-Space Land Act and the Virginia Conservation Easement Act.
Nancy McLaughlin, Professor of Law at the University of Utah College of Law, opened the Symposium discussion by arguing that public utilities such as Dominion do not have the right to exercise the power of eminent domain over conservation easements held by public bodies in Virginia. She did, however, claim that public utilities had such a right with respect to conservation easements held by private land trusts. Her Article echoes these arguments and provides a full analysis of the relevant provisions of state and federal law at issue in this controversy. George Freeman, one of the original drafters of Virginia's historic and open space preservation legislation in the 1960s, offered an insight into the legislative intent of the drafters and supported McLaughlin's argument that easements held by a public body in Virginia could not be condemned by another state agency or public utility without the consent of the public body holding the easement. Frederick Fisher, Special Assistant Attorney General and counsel to theVirginia Outdoors Foundation (VOF), provided the VOF's perspective on the condemnation of protected open space land. Fisher emphasized the importance of ensuring that landowners who donated land for easements to the VOF in the past not lose land or money due to condemnation. He argued, similar to Freeman and McLaughlin, that public utilities cannot “condemn open space easements owned by the Commonwealth because they are state property.”
Lynn Coleman, a member of the Board of Directors of the Piedmont Environmental Council, argued passionately against the construction of the transmission line through Dominion's proposed path, emphasizing that the line would impose upon the largest concentration of conservation easements in the United States, historic sites and battlefields, and important forestry and agricultural districts. Coleman raised the concerns of landowners adjacent to condemned properties, who would not receive compensation for the resulting decrease in their property values occurring as a result of the construction of the transmission facilities. Nikki Rovner, Deputy Secretary of Natural Resources for the Commonwealth of Virginia, communicated Governor Tim Kaine's opposition to the designation of the transmission corridor in northern Virginia and emphasized his Land Conservation Initiative, which aims to permanently protect 400,000 acres of land within the Governor's four-year tenure.
John Smatlak, Vice President for Electricity Transmission, Dominion Virginia Power, stressed the need for Dominion to be able to construct power lines in the northern Virginia corridor to meet the area's ever-growing electricity demand. Smatlak said that Dominion planned the transmission lines to have the least environmental and social impact and made every reasonable attempt to avoid condemning open space easements.
Finally, John D. Echeverria, Executive Director of the Georgetown Environmental Law & Policy Institute at the Georgetown University Law Center, provided an intriguing critique of conservation easements in general. He argued that “the approach of relying on private volunteers to decide what lands they wish to conserve” in the case of private conservation easements “produces an irrational and. . . environmentally unfriendly conservation plan” that simply moves development around instead of actually restricting it. Echeverria argued that, assuming the transmission lines were actually needed, the U.S. Secretary of the Interior should be responsible for selecting the location and path of the lines, weighing the value of conservation interests against the need for transmission services.
Prepared symposium remarks by Fisher and Freeman are included herein, along with an Article by McLaughlin expounding upon her position expressed at the Symposium. While Mark DeFiguieredo did not participate in the Symposium discussion, his Note is contained herein because of its particular relevance to the issues. The Journal would like to thank all of the Symposium participants and contributing authors for their very valued participation and involvement. The Journal would also like to thank all of the interested landowners, attorneys, and students who attended the Symposium and made it such a great success. It is our hope that the ideas expressed at the Symposium and offered in this issue will be used in a constructive manner as public officials, landowners, and attorneys continue to grapple with the environmental legal and policy issues associated with the construction of Dominion's planned transmission line.
Dominion Virginia Power's planned construction of an electricity transmission line through scenic open space and conservation easement-protected lands in Virginia is a topic of great interest and importance to many Virginia residents and their legislators. To provide a forum to discuss the contentious issue of the possible condemnation of land for the transmission line, the Virginia Environmental Law Journal held a Symposium, entitled “Condemning Open Space,” in the fall of 2007. The Symposium provided a forum for a wide variety of perspectives on the proposed transmission line, the condemnation of conservation easement-encumbered land, and the payment of just compensation upon any such condemnation. This particular issue of the Journal grows out of some of the ideas and conclusions expressed by the Symposium participants. This introduction will provide some background information on the topic of the Symposium, as well as a brief summary of the views expressed by the “Condemning Open Space” Symposium participants and the contributing authors to this issue.
In 2006, Dominion Power announced plans to construct new electricity transmission lines stretching from Virginia to New Jersey. The 240 mile line planned for Virginia would stretch through several northern Virginia counties, many of which are encumbered by conservation easements. Dominion's plans for the new lines came on the heels of the passage of a controversial section of the Energy Policy Act of 2005 governing the siting of interstate electric transmission facilities. The Symposium participants grappled with the implications of the interaction of this new federal provision with Virginia law governing conservation easements, including the Open-Space Land Act and the Virginia Conservation Easement Act.
Nancy McLaughlin, Professor of Law at the University of Utah College of Law, opened the Symposium discussion by arguing that public utilities such as Dominion do not have the right to exercise the power of eminent domain over conservation easements held by public bodies in Virginia. She did, however, claim that public utilities had such a right with respect to conservation easements held by private land trusts. Her Article echoes these arguments and provides a full analysis of the relevant provisions of state and federal law at issue in this controversy. George Freeman, one of the original drafters of Virginia's historic and open space preservation legislation in the 1960s, offered an insight into the legislative intent of the drafters and supported McLaughlin's argument that easements held by a public body in Virginia could not be condemned by another state agency or public utility without the consent of the public body holding the easement. Frederick Fisher, Special Assistant Attorney General and counsel to theVirginia Outdoors Foundation (VOF), provided the VOF's perspective on the condemnation of protected open space land. Fisher emphasized the importance of ensuring that landowners who donated land for easements to the VOF in the past not lose land or money due to condemnation. He argued, similar to Freeman and McLaughlin, that public utilities cannot “condemn open space easements owned by the Commonwealth because they are state property.”
Lynn Coleman, a member of the Board of Directors of the Piedmont Environmental Council, argued passionately against the construction of the transmission line through Dominion's proposed path, emphasizing that the line would impose upon the largest concentration of conservation easements in the United States, historic sites and battlefields, and important forestry and agricultural districts. Coleman raised the concerns of landowners adjacent to condemned properties, who would not receive compensation for the resulting decrease in their property values occurring as a result of the construction of the transmission facilities. Nikki Rovner, Deputy Secretary of Natural Resources for the Commonwealth of Virginia, communicated Governor Tim Kaine's opposition to the designation of the transmission corridor in northern Virginia and emphasized his Land Conservation Initiative, which aims to permanently protect 400,000 acres of land within the Governor's four-year tenure.
John Smatlak, Vice President for Electricity Transmission, Dominion Virginia Power, stressed the need for Dominion to be able to construct power lines in the northern Virginia corridor to meet the area's ever-growing electricity demand. Smatlak said that Dominion planned the transmission lines to have the least environmental and social impact and made every reasonable attempt to avoid condemning open space easements.
Finally, John D. Echeverria, Executive Director of the Georgetown Environmental Law & Policy Institute at the Georgetown University Law Center, provided an intriguing critique of conservation easements in general. He argued that “the approach of relying on private volunteers to decide what lands they wish to conserve” in the case of private conservation easements “produces an irrational and. . . environmentally unfriendly conservation plan” that simply moves development around instead of actually restricting it. Echeverria argued that, assuming the transmission lines were actually needed, the U.S. Secretary of the Interior should be responsible for selecting the location and path of the lines, weighing the value of conservation interests against the need for transmission services.
Prepared symposium remarks by Fisher and Freeman are included herein, along with an Article by McLaughlin expounding upon her position expressed at the Symposium. While Mark DeFiguieredo did not participate in the Symposium discussion, his Note is contained herein because of its particular relevance to the issues. The Journal would like to thank all of the Symposium participants and contributing authors for their very valued participation and involvement. The Journal would also like to thank all of the interested landowners, attorneys, and students who attended the Symposium and made it such a great success. It is our hope that the ideas expressed at the Symposium and offered in this issue will be used in a constructive manner as public officials, landowners, and attorneys continue to grapple with the environmental legal and policy issues associated with the construction of Dominion's planned transmission line.