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Durham E-Theses Durham E-Theses On the Legitimacy of Economic Development Takings DYRKOLBOTN, SJUR,KRISTOFFER How to cite: DYRKOLBOTN, SJUR,KRISTOFFER (2016) On the Legitimacy of Economic Development Takings, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/11559/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk On the legitimacy of economic development takings Sjur Kristoffer Dyrkolbotn Thesis submitted to Durham Law School at Durham University for the degree of Doctor of Philosophy 24th March 2016 99 947 words excluding bibliography Contents List of Abbreviations 2 Abstract 7 Acknowledgements 9 List of Abbreviations 10 1 Introduction and Summary of Main Themes 11 1.1 Property Theory and Economic Development Takings . 15 1.2 A Democratic Deficit in Takings Law? . 19 1.3 Putting The Theory to the Test . 21 1.4 A Judicial Framework for Compulsory Participation . 25 1.5 Some Terminological Clarifications . 26 I Towards a Theory of Economic Development Takings 33 2 Property, Protection and Privilege 35 2.1 Introduction . 35 2.2 Donald Trump in Scotland . 37 2.3 Theories of Property . 45 2.3.1 Takings under Bundle and Dominion Accounts of Property . 48 2.3.2 Broader Theories . 52 2.4 The Social Function of Property . 54 2.4.1 Historical Roots and European Influence . 55 2.4.2 The Impossibility of a Socially Neutral Property Regime . 60 2.4.3 The Descriptive Core of the Social Function Theory . 64 2.5 Human Flourishing . 67 2.5.1 Property as an Anchor for Economic and Social Rights . 68 2.5.2 Property as an Anchor for Democracy . 73 2.6 Economic Development Takings . 77 2 CONTENTS 2.6.1 Kelo: Casting Doubts on the Narrow Approach to Judicial Review . 81 2.7 Conclusion . 87 3 Possible Approaches to the Legitimacy Question 89 3.1 Introduction . 89 3.2 England and Wales: Legitimacy through Parliament . 92 3.3 The US: Legitimacy through Public Use . 99 3.3.1 Legitimacy as Discussed by the Supreme Court . 102 3.3.2 Economic Development Takings after Kelo . 106 3.4 The ECtHR: Legitimacy as Institutional Fairness . 108 3.4.1 Legitimacy Erga Omnes ............................. 110 3.5 The Extended Gray Test . 116 3.6 Alternatives to Takings for Economic Development . 126 3.6.1 Land Assembly Districts . 133 3.7 Conclusion . 139 II A Case Study of Norwegian Waterfalls 141 4 Norwegian Waterfalls and Hydropower 143 4.1 Introduction . 143 4.2 Norway in a Nutshell . 146 4.2.1 Property Regimes in Norway . 148 4.2.2 The Importance of Water Resources . 151 4.3 Hydropower in the Law . 156 4.3.1 The Water Resources Act . 158 4.3.2 The Watercourse Regulation Act . 159 4.3.3 The Industrial Licensing Act . 162 4.3.4 The Energy Act . 164 4.3.5 The Licensing Procedure . 165 4.4 Hydropower in Practice . 169 4.5 Nordhordlandsmodellen .................................. 174 4.6 The Future of Hydropower . 178 4.7 Conclusion . 183 5 Taking Waterfalls 185 3 CONTENTS 5.1 Introduction . 185 5.2 Norwegian Expropriation Law: A Brief Overview . 186 5.3 Taking Waterfalls by Obtaining a Development License . 190 5.4 Taking Waterfalls for Progress . 192 5.4.1 The Natural Horsepower Method . 195 5.4.2 Increased Scale of Development and Increased Tension . 198 5.4.3 The Alta Controversy . 201 5.5 Taking Waterfalls for Profit . 206 5.5.1 Sauda ....................................... 207 5.5.2 Uleberg ...................................... 209 5.5.3 Recent Developments on Compensation . 210 5.6 A detailed case study: Ola M˚alandv Jørpeland Kraft AS . 214 5.6.1 The Facts of the Case . 216 5.6.2 The Lower Courts . 220 5.6.3 The Supreme Court . 223 5.7 Predation? . 225 5.8 Conclusion . 232 6 Enabling Participation to Replace Eminent Domain 233 6.1 Introduction . 233 6.2 Land Consolidation as an Alternative to Expropriation . 234 6.3 Land Consolidation in Norway . 241 6.3.1 Organising the Use of Property . 244 6.4 Enabling Participation in Hydropower Development . 249 6.4.1 Vika ........................................ 249 6.4.2 Oma ........................................ 251 6.4.3 Djønno ...................................... 254 6.4.4 Tokheim ...................................... 257 6.5 Assessment and Future Challenges . 258 6.6 Conclusion . 266 7 Conclusion 269 Bibliography 283 Books . 283 4 CONTENTS Contributions to Collections . 286 Articles . 288 Other Works . 298 Cases Cited 303 England and Wales . 303 European Court of Human Rights . 303 Norway . 304 Other Jurisdictions . 306 The United States . 306 Legislation Cited 309 Norway . 309 Other Law Instruments . 310 United Kingdom . 311 Preparatory Documents Cited 313 Norway . 313 5 CONTENTS 6 CONTENTS On the Legitimacy of Economic Development Takings Sjur Kristoffer Dyrkolbotn Thesis submitted to Durham Law School at Durham University for the degree of Doctor of Philosophy 24th March 2016 Abstract For most governments, facilitating economic growth is a top priority. Sometimes, in their pursuit of this objective, governments interfere with private property. Often, they do so by indirect means, for instance through their power to regulate permitted land uses or by adjusting the tax code. However, many governments are also prepared to use their power of eminent domain in the pursuit of economic development. That is, they sometimes compel private owners to give up their property to make way for a new owner that is expected to put the property to a more economically profitable use. This thesis asks how the law should respond to government actions of this kind, often referred to as economic development takings. The thesis makes two main contributions in this regard. First, in Part I, it proposes a theoretical foundation for reasoning about the legitimacy of economic development takings, including an assessment of possible standards for judicial review. Moreover, the thesis links the legitimacy question to the work done by Elinor Ostrom and others on sustainable management of common pool resources. Specifically, it is argued that using institutions for local self-governance to manage development potentials as common pool resources can potentially undercut arguments in favour of using eminent domain for economic development. Then, in Part II, the thesis puts the theory to the test by considering takings of property for hydropower development in Norway. It is argued that current eminent do- main practices appear illegitimate, according to the normative theory developed in Part I. At the same time, the Norwegian system of land consolidation offers an alternative to eminent domain that is already being used extensively to facilitate community- led hydropower projects. The thesis investigates this as an example of how to design self-governance arrangements to increase the democratic legitimacy of decision-making regarding property and economic development. 7 CONTENTS 8 CONTENTS Acknowledgements My supervisor, Professor Tom Allen, has been a great support and inspiration ever since we first corresponded about the possibility of me doing a PhD in Durham, in the spring of 2012. His style as a supervisor has been superb: calm and unperturbed, yet always sharp and focused, readily available to offer insightful comments and valuable guidance. Thank you, Tom. Second, I would like to thank Durham Law School for offering me a place at their department and for treating me well while I have been there. Thanks also to Professor Leigh and Professor Masterman for taking an interest and giving me valuable comments following my first year review. Third, I would like to thank Professor Jacques Sluysmans, Professor Hanri Mostert, and Professor Leon Verstappen, for welcoming me to their regular colloquia on ex- propriation law. Attending and speaking at these meetings has been a very valuable experience for me, allowing me to learn from expropriation lawyers and scholars from many different jurisdictions. A special thanks to Professor Sluysmans, Dr Emma War- ing and Dr Stijn Verbijst for inviting me to contribute a chapter on Norway in their book on expropriation in Europe. Another special thanks to Dr Waring for sending me a copy of her doctoral thesis on private takings; it has been a great help and inspira- tion for my own work. Also a special thanks to Dr Ernst Marais and Bj¨ornHoops for organising an excellent conference in Rome.
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