All Condemned, and Nothing to Build

The New York Times has a great piece on how the massive private redevelopment of downtown New London at issue in Kelo v. City of New London 545 U.S. 469 (2005) . . . never happened. The article can be read here. The Volokh Conspiracy has a discussion of the development here. This development, the folks at Volokh say, helps bolster the argument that the government should not use eminent domain power to override multiple individuals' (i.e., the homeowners in the razed area) decisions about land use in favor of private redevelopment, since the government is prone to capture by large, well organized, monied corporate interests (i.e. Pfizer, which is backing out of its plans for a major research campus in the razed area).

I would posit that this rationale is not as vital, however, when it comes to how we think about "takings" via environmental regulation. In a case like Kelo, the private interest is quite powerful, and one would not suspect a troubling collective action problem on the part of the landowners. But when the government exercises its power in favor of environmental values, the concern about capture is more feeble: no matter how some property rights advocates may kvell about the power of the environmental lobby, corporate and money interests are more powerful, especially at the local level. And the likelihood of a troubling collective action problem is higher, since we can expect individual landowners to discount environmental values, which are all too often (still) externalized.

Frankly, I never understood Kelo. The colossal waste of a lovely neighborhood is unfortunate, but at least this latest development will stand as a cautionary tale for local authorities tempted to try something like this again, or for those state legislatures that have not yet passed laws forbidding the use of eminent domain powers signed off on in the case.