To the editor:

The use of eminent domain by Invenergy Transmission LLC to procure land for the Grain Belt Express, or GBE, has become controversial and contentious. Grain Belt Express is a proposed overhead transmission line that would originate in Kansas and deliver solar and wind power to the Northeastern United States after passing through Missouri and Illinois. Landowners in all three states have steadfastly opposed the line because it runs over farms and homes owned by families for generations. While a majority of citizens have signed easement agreements, they have done so begrudgingly.

Here’s the problem: eminent domain is allowed under the Fifth Amendment to the U.S. Constitution — it’s referred to as the “taking clause” — as long as fair compensation is given to the landowner. The federal government may delegate the right to invoke eminent domain to utility companies, but they must act in the public good. What many people fail to realize, however, is that the actual easement agreements tendered by corporate entities such as Invenergy are written by the companies and not the federal government. A majority of landowners mistakenly believe that the documents they’re signing are literally part of eminent domain law. They’re not.

As a representative of Senator Roger Marshall pointed out at a recent Pawnee County Town Hall meeting, the agreements landowners enter into with Invenergy are agreements that impose conditions set by the company and have nothing to do with the charter granted by the Department of Energy to Invenergy to seek eminent domain. The agreements naturally specify that land of a certain width will be used to construct Grain Belt Express. But the agreements also contain other clauses that place undue hardships upon citizens. These additional demands have nothing to do with the Fifth Amendment or its taking clause.

Invenergy would like landowners to believe that, after construction, they can live their lives as usual, but acreage can be rendered unusable for any number of reasons specified in the easement agreements. For example, GBE can cut roads onto the easement property if it deems it necessary and even remove existing structures if it deems that they interfere with its operation. One clause states that GBE shall operate on the easement in a manner that “shall cause the least practicable damage and inconvenience to the landowner.” Is any damage or inconvenience acceptable?

Grain Belt Express also reserves the right to add additional infrastructure to the easement without directly naming what these additions might be. One GBE plan is to run broadband cable and/or towers through the easement area. Additional, unspecified structures could further compromise the integrity of the land and how it may be used.

These are matters that go directly to the heart of whether or not the property can be used in the manner that it was before construction. People in Missouri and Kansas have learned the hard way that they frequently cannot use the land any longer under such conditions.

But these practical concerns represent only a portion of the extreme measures that Invenergy easement agreements impose on those who have had land seized by eminent domain. One clause requires the signee to legally defend GBE should a third party make a claim against the company. Another clause requires the landowner to cooperate with GBE in seeking licenses, permits, and environmental reviews. Are these actions the landowner’s responsibility?

Even more outlandish is that Grain Belt can terminate the entire agreement at any time. It can abandon the project and opt out of all responsibilities named in the document, which is not a right offered to the landowner. Furthermore, GBE can sell, lease, or mortgage the easement area to a third party as long as the purchaser assumes Grain Belt’s original obligations. Who is to say that a new owner of the easement will not impose additional conditions upon the landowner?

Another clause requires the signee to stand by the agreement even if one or more clauses are determined to be illegal by Kansas law or federal law. Does Invenergy have the right to ask a landowner to stand solidly behind an agreement that has been declared totally or in part to be illegal? It is asking the landowner to be complicit in actions that may be against the law. But there’s more. If such violations have occurred, the landowner must actively work with GBE to produce new amendments to the document and even help GBE procure a new easement altogether.

These last two conditions demand that the landowner engage in legal and corporate activities on behalf of Invenergy. Asking the landowner to help GBE with legal issues goes well beyond the scope of securing land for transmission lines, and this holds true for many other easement clauses as well. Should a landowner be required to aid Invenergy in matters pertaining to lawsuits, compliance with federal laws, construction, relocation, or the maintenance of its infrastructure? Approximately half of the agreement has nothing to do with securing an easement or the placement of transmission lines.

The final insult is that Invenergy requires the signee to forego the right to a jury trial, one of the most sacred rights guaranteed by the United States Constitution. In other words, if you have any future qualms as to the legality of these easement clauses, you’ve forfeited your right to obtain justice.

As for fair compensation, people are given money above appraised value (usually up to 150%), but it doesn’t cover the lost revenue of crops or business earnings far into the future, nor does it take into account the real estate depreciation that usually occurs following the placement of HVDC lines near a property. More importantly, property owners are not compensated for the entire tract of land through which the easement runs. They are only paid for the strip of land over which the lines are strung (and seventy-five feet on either side of the center line) even though the easement may prevent use of all or part of the remaining acreage.

Invenergy claims that such clauses are merely boilerplate language, and if someone has signed the agreement, they are bound by it because no one coerced them into doing so. And that’s the rub. Were those who signed an easement agreement led to believe that the clauses represented federal law connected to eminent domain? Were they told that construction was imminent and that their property would soon be condemned? Were they told that all licenses and permits were in place (they’re not)? Were they given false or misleading information regarding the GBE timeline or the current status of the project under federal law?

The above scenarios constitute eminent domain abuse. Grain Belt Express faces legal challenges, has been excluded from the MISO electrical grid, doesn’t have funding for the entire project, and has had its license revoked in Illinois. It even planned construction before meeting compliance with all federal laws governing the project. Landowners were told none of this.

The Fifth Amendment does indeed have a taking clause that is the basis for eminent domain. But the Fifth Amendment and the constitution as a whole guarantee rights that perhaps would not support the many conditions of Invenergy’s easement agreement. So the question remains: Do you really know what you’re signing? If you’ve already signed, did you understand that you were giving away the store?

To examine the actual language and clauses of the easement agreement used by GBE, please visit www.stopeminentdomainabuse.orgwhere I have posted the agreement Invenergy asked me to sign.

Tammy Hammond, Landowner & Rosewood Services CEO

Pawnee Rock