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The Rights of Private Property: An Essay

May 21, 2011


Claudia and I have a small farm located in the “Rural Tier” of Prince George’s County. It’s a beautiful patch of rolling hills, fields and woods. Now suppose the County decided that this was an ideal spot for a waste transfer station. We would fight it tooth and nail, legally and politically. I’m not a big fan of eminent domain. We’ve paid our mortgage for many years, not to mention real estate taxes. And we don’t want to lose our home or despoil this natural paradise. My yellow flag with snake is up: Don’t Tread on Me. And government, don’t tell us to spend $20,000 to pave our gravel driveway. And don’t tell us to chop down the Russian olive trees because it’s an invasive species. A local hive keeper says the honey bees like Russian olive flowers. And don’t tread on our property. Get permission first. After all, the 5th Amendment to the Constitution says, “No person shall be . . .nor shall private property be taken for publicuse, without just compensation.”


My wife the builder; Claudia's Pottery Shed in the front field (no permit please)

Do I sound like a member of the Tea Party? Not quite and here is why. Let’s say that your neighborhood electric utility company (NEUC) has a coal burning power plant. The  plant produces a great deal of toxic ash which contains arsenic, chromium, lead, cadmium, etc.. This ash has to go somewhere. So the company uses property it owns for an ash landfill. Unfortunately it’s a few hundred yards from your home. Unfortunately, EPA has failed to designate this ash as a hazardous waste and your state environmental agency is….on the lax side. So the ash is not covered and whenever the wind kicks up the ash blows onto your property, i.e. onto your porch, picnic table, and into your garden. Maybe it even collects on your rug. (See previous post).

Now the Tea Party crowd might say that the power company should be free to use its own property without restriction. But here’s the rub; what the company does on its property impacts your property — and may do so in a way

Fly ash from a coal fired power plant is dumped in an unlined pit two miles from the heart of Bokoshe, OK; Source:

that could harm the health of your family and reduce the value of your property. You might regard the ash that blows onto your land as a form of trespass, chemical trespass.  By trespassing (rather than investing in controls) the company is able to cut its costs and boosts its profits —  at your expense!

No wonder big energy moguls including the Koch Brothers are funding the Tea Party to put property rights above human rights. See hilarious video / musical spoof of the Koch Brothers here. 

Fracking and property rights:  There is currently a boom in natural gas exploitation in the deep shale rock. For example, the Marcellus shale, rich in natural gas, covers parts of Pennsylvania, New York, Ohio and other states.

Natural gas drilling operation in Bradford Co. Pennsylvania adjacent to farm. Source:

Hydraulic fracturing (aka fracking) is the use of pressurized fluid to form networks of cracks which allow the gas to be pulled up to the surface from thousands of feet down. The hydraulic fluid is filled with sand and chemicals (kept confidential as trade secrets); drillers even use diesel oil.

Flaming tap water: A common occurrence in fracking areas. Source:

There have been many accidents and reports of contaminated drinking water in the areas where gas companies have drilled. Here are a few examples:

  • Must See: PBS NOW Video with David Brancaccio interview with Josh Fox, filmmaker of the award winning documentary Gasland. 
  • See what some Pennsylvania farmers have to say about the damage to their properties from natural gas fracking. “The energy company treated my farm like a landfill.” “This has been nothing but hell for my family and neighbors,” said Ron Gulla, whose farm near Hickory was the second Marcellus Shale well drilled in the state.  Exempted from Safe Drinking Water Act. Unfortunately, the level of state and federal regulation of fracking is limited and/or ineffective with some state governors e.g. Kasich (Ohio) are laying down a big cozy welcome mat for the natural gas industry.

But wait, it get’s worse: Pro Publica reports that gas companies are using a controversial legal tool called forced pooling to gain access to the gas that lies beneath private property–in many cases, without the landowners’ permission. Here is how it works according to Pro Publica: “Forced pooling compels holdout landowners to join gas-leasing agreements with their neighbors. The specific provisions of the laws vary from state to state, but drillers are generally allowed to extract minerals from a large area or “pool”–in most states a minimum of 640 acres–if leases have been negotiated for a certain percentage of that land. The company can then harvest gas from the entire area. In most cases, drillers aren’t allowed to build surface wells on unleased land, so they use horizontal wells or other means to collect the minerals beneath those parcels. Thirty-eight states have some form of forced pooling law.”  As Joseph Todd, a resident of rural Big Flats, N.Y. had no choice but to allow gas exploitation below his property.  Imagine his outrage when methane gas showed up in his drinking water well. He described forced pooling as “eminent domain for gas drillers,” in other words, seizure of homeowner property for corporate profit. Is this what the framers intended? Even Pennsylvania Governor Corbett, a big fan of fracking, is opposed to forced pooling as an infringement on property rights, in this case true to his conservative principles.

The bottom line: While the Constitution, at least in theory, guarantees property rights to all citizens, it seems that the rights of big corporate powers, armed with lawyers, lobbyists, preempt the rights of individuals.

5 Comments leave one →
  1. Byron Kennard permalink
    June 28, 2011 8:14 am

    Really nice piece, Hank.

  2. May 22, 2011 1:18 am


  3. Charlie Grob permalink
    May 21, 2011 4:08 pm

    ….sorry for the misplaced “u” in Galt….

  4. Charlie Grob permalink
    May 21, 2011 3:59 pm

    I have my “CHUCK WAGON” fully loaded with enough food, tools and water to last me six months, as I search for John Gault’s Gulch. I have had enough of the Republi-CONS, and the DemoRATS, and everyone else that trys to sell the idea that they have the right to take a piece of what I’ve worked for by whatever means necessary.

  5. Jo-Anne Unruh permalink
    May 21, 2011 3:38 pm

    Interesting and informative piece. Thanks Hank.

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