The artificial intelligence boom in the US is accompanied by a boom in data center construction. There are more than 3,000 data centers in the United States and another 1,500 in development, according to a Pew Research Center analysis.
While President Donald Trump has promoted the development of AI, calling it critical to economic and national security, polls show that 7 in 10 Americans oppose building AI data centers in their communities, citing higher utility bills, pollution, noise and loss of green space. These centers, which contain computer servers that process words, images and lines of code for large language models such as ChatGPT, also consume large amounts of water and electricity.
There is also growing resistance to the infrastructure around them, especially the power lines needed to supply them, which often must cross privately owned land.
Where private citizens refuse to sell their land, companies resort to eminent domain, the inherent power of the government to seize private property without the landowner’s consent. But is a line built to serve a private data center compliant?
I am a legal scholar studying important issues in the field, and I interpret today’s debate over the seizure of property in favor of artificial intelligence infrastructure as the latest incarnation of a long-standing debate about the limits of taking private property for public use.
Why do you need an extension?
Data centers have enormous power demands, which can strain electrical networks and compromise their reliability. In 2024, they accounted for more than 4% of the country’s total electricity consumption. Demand will increase as new ones are built. To meet this demand, power companies must build more transmission lines and acquire land to lay them.
Across the U.S.—in states like Georgia and Pennsylvania—energy companies have sought eminent domain to achieve these goals.
What is eminent domain?
Energy companies may approach landowners to purchase easements for power lines; if landowners refuse, the government can force the land to be sold.
The government can seize private land without consent if the seizure is for “public use” and if the landowner is given “just compensation” under the Takings Clause of the Fifth Amendment to the U.S. Constitution.
Although the federal government has the power to initiate significant enforcement actions (also called condemnations), most are carried out by state and local governments.
Governments can also delegate these powers to private entities or “common carriers” such as power and water companies, although each state has its own rules regarding whether and how these utilities can exercise eminent domain. In Texas, for example, the state Supreme Court ruled that a project must “serve the public” and “cannot be constructed solely for the exclusive use of the developer” to qualify as a public conveyance.
What is the “public use” standard?
Although property can only be taken for “public use,” the U.S. Supreme Court has interpreted this requirement permissively. In its 2005 decision, Kelo v. City of New London, the court ruled that economic development qualified, allowing New London, Connecticut, to seize homes for private development around the Pfizer site. However, this reconstruction never happened, and Pfizer eventually left New London.
In response to this decision—and the public backlash that followed—45 states passed landmark eminent domain reform laws.
In addition to reform laws, some state supreme courts interpret the eminent domain provisions of their state constitutions more restrictively. The Supreme Courts of Michigan, Ohio, and Oklahoma have prohibited the taking of private property for the purpose of transferring it to another private entity solely for economic development.
This means private landowners may have more success challenging condemnation claims under their state constitutions than in federal court. However, courts generally permit the use of eminent domain by utilities such as power companies.
Data centers used more than 4% of US electricity in 2024, and demand is growing. Justin Sullivan/Getty Images
What does this mean for data center expansion?
Lawsuits challenging the seizure of power line property on grounds of public use have produced mixed results.
For example, the supreme courts of South Dakota and Vermont have upheld asset forfeiture by power companies, finding that providing at least some energy and improving the reliability of the electric grid to the state’s consumers are legitimate public uses.
But that argument changes if transmission lines, some of which cross state lines, benefit no one in the state.
For example, in 1984, the Mississippi Supreme Court rejected a power company’s condemnation claim because the transmission line in question would have run from Mississippi to Louisiana without benefiting any Mississippi customers.
These decisions suggest that because data centers increase energy demand and strain existing infrastructure, taking land to improve grid reliability will likely qualify as a public use, especially if the goal is to provide reliability to customers in the state.
However, the debate over whether additional transmission lines actually serve customers in the state could give landowners cause for doubt.
Aaron Walayat, Associate Professor of Law, University of Dayton
This article is republished from The Conversation under a Creative Commons license. Read the original article.
