Key takeaways

  • Most transmission line condemnations proceed under state law, through a utility holding a state certificate.
  • Federal Power Act section 216 adds a narrow federal path that applies only inside a national interest electric transmission corridor after FERC issues a construction permit.
  • Under section 216(f), just compensation equals fair market value including applicable severance damages, measured on the date the eminent domain authority is exercised.
  • A section 216 right of way must be used only for transmission facilities and terminates when that use ends.
  • Section 216 does not apply within the ERCOT area, and nothing in it displaces state law siting.

High voltage corridors cross farms, ranches, timber, and rural residential land, usually as a permanent easement rather than a fee taking. The owner keeps title and keeps paying taxes, while the utility gains the right to build, access, and maintain the line and to keep the corridor clear. The value questions are unusually technical, and the easement language often matters more than the price.

Where the taking power comes from

Electric transmission siting is primarily a state function. A utility ordinarily applies to the state public utility or public service commission for a certificate of public convenience and necessity, and state statutes then supply the condemnation authority and procedure. Federal Power Act section 216 says expressly that nothing in the section precludes any person from constructing or modifying a transmission facility in accordance with state law.

The narrow federal route under section 216

Congress added section 216 to the Federal Power Act in the Energy Policy Act of 2005 and amended it in 2021. Under it, the Secretary of Energy studies transmission capacity constraints and congestion at least once every three years and may designate a national interest electric transmission corridor. Inside such a corridor, FERC may issue a construction permit after notice and hearing if it finds, among other things, that the state lacks authority to approve siting or to consider interstate or interregional benefits, or that the state commission has not decided within one year, has conditioned approval so the project will not significantly reduce congestion or is not economically feasible, or has denied the application.

If a permit issues and the permit holder cannot acquire the right of way by contract or cannot agree with the owner on compensation, and FERC determines the permit holder made good faith efforts to engage with landowners and other stakeholders early in the permitting process, the permit holder may exercise eminent domain in the United States district court for the district where the property sits or in the appropriate state court. Practice and procedure in the federal action conform as nearly as practicable to a similar proceeding in the courts of the state where the property is located.

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What the statute says about compensation

Section 216(f) is unusually direct. A right of way acquired under subsection (e) is considered a taking of private property for which just compensation is due, and just compensation is an amount equal to the fair market value, including applicable severance damages, of the property taken on the date the eminent domain authority is exercised. State condemnation statutes state the measure differently, but severance damages to the remainder are recognized in most states.

Easement scope is the whole fight

Read the proposed easement before discussing money. The terms that drive value include the width of the corridor, whether the grant is exclusive, the utility rights of access and the routes it may use, vegetation management and tree cutting rights, the right to add circuits or additional structures later, restrictions on buildings, wells, ponds, irrigation, and fencing inside the corridor, and who repairs crop, drainage, and soil compaction damage during construction. A narrower and better defined easement is often worth more to an owner than a higher price on a broad one.

Damages to the remainder

Transmission easements are classic partial takings. In United States v. Miller the Supreme Court held that a tract used and treated as a single entity is considered as such in assessing compensation, so the relation of the part taken to the whole matters. Recognized sources of damage on rural land include a corridor that bisects fields and forces inefficient farming patterns, loss of aerial application, interference with center pivot irrigation, restrictions on future building sites, and loss of the highest and best use of the remainder. Marketability and visibility effects are argued frequently, and states differ on how far that evidence may go. See our guides on just compensation and pipeline easements, which raise parallel issues.

What to do when a utility contacts you

Ask for the route maps and the proposed easement document in writing. Find out whether the project holds a state certificate and whether any federal permit is involved. Do not sign a survey permission or right of entry without limits on scope, timing, and restoration. Attend the appraisal inspection. Photograph the corridor, field patterns, drainage, irrigation, and access. Our first steps guide covers the early paperwork, and fighting a taking covers challenges to the right to take.

Frequently asked questions

Can a power company use eminent domain for a transmission line?

Usually yes, but the authority normally comes from state law. Utilities that hold a certificate of public convenience and necessity from a state commission generally may condemn a right of way. Federal Power Act section 216 adds a narrow federal route that applies only in limited circumstances.

When can FERC authorize eminent domain for a transmission line?

Only where the Commission has issued a construction permit under Federal Power Act section 216 for facilities in a national interest electric transmission corridor designated by the Secretary of Energy, and the permit holder cannot acquire the right of way by contract or agree on compensation, and the Commission determines the permit holder made good faith efforts to engage with landowners early in the permitting process.

What compensation is owed for a federal transmission right of way?

The statute is explicit. A right of way acquired under section 216(e) is a taking of private property for which just compensation is due, and just compensation is an amount equal to the fair market value, including applicable severance damages, of the property taken on the date the eminent domain authority is exercised.

Is the easement permanent?

A right of way acquired under section 216(e) must be used exclusively for constructing, modifying, operating, or maintaining electric transmission facilities, and it terminates when that use terminates. State law easements vary in duration and scope, which is why the written easement terms matter.

Does section 216 apply everywhere in the United States?

No. The section does not apply within the ERCOT area referred to in 16 U.S.C. 824k(k)(2)(A), and nothing in the section prevents a person from building or modifying a transmission facility in accordance with state law.

Sources

Educational information only. This guide describes federal transmission siting law and general condemnation principles. State siting procedure, easement law, and damage rules differ and turn on the facts of each case. Consult an attorney licensed in your state about your situation.
ED

Eminent Domain Lawyer Editorial Team

We publish plain-language guides for property owners facing condemnation, researched against primary legal sources. We serve property owners only, never condemning authorities.