December 5, 2013
The Gap Left by the Clean Energy and Economic Security Act in NC
Following months of polarized debates, the North Carolina legislature has legalized hydraulic fracturing and horizontal drilling through the enactment of the Clean Energy and Economic Security Act. Public discourse has primarily tracked concerns over energy security, environmental protection, and public health. What the dialogue has failed to adequately consider is the extent to which private property rights may be threatened should hydraulic fracturing and horizontal drilling activities commence. North Carolina’s current eminent domain regime grants natural gas producers broad authority to take private property, particularly for the construction of pipelines. However, it is unclear whether such authority will extend to other hydraulic fracturing and horizontal drilling infrastructure. Therefore, North Carolina should amend its constitution and its takings laws to both clarify and limit a private condemnor’s ability to exercise eminent domain, especially when the primary purpose is private gain.