Two decades after the United States Supreme Court fractured public opinion in Kelo v. City of New London, 545 U.S. 469 (2005), the debate over using eminent domain to benefit private infrastructure projects is back with force. Carbon dioxide pipelines stretching across the Corn Belt, high-voltage transmission lines feeding hyperscale data centers in Northern Virginia, private toll road corridors, and a wave of state ballot initiatives have pulled the public use question out of the law review journals and back onto the front pages. For Florida commercial landowners, developers, and investors, the stakes are immediate. The rules governing whether a private developer, utility, or common carrier can force a sale of your land are being rewritten in state capitals and in the courts, and the decisions being made in 2026 will shape land values, project timelines, and capital deployment for the next generation of real estate investment.
This post takes stock of the renewed debate, explains why it matters for Florida property owners and developers, and outlines what business owners should be doing right now to protect their positions.
Why the Debate Came Roaring Back
In Kelo, a 5 to 4 Supreme Court held that a municipality could condemn unblighted private homes and transfer them to a private developer as part of a comprehensive economic development plan without running afoul of the Fifth Amendment’s Public Use Clause. The backlash was immediate and bipartisan. As the National Constitution Center and the Institute for Justice have documented, 45 states responded with some form of statutory or constitutional reform. Florida was one of them. Yet Kelo itself remains good federal law, and the American Planning Association’s twentieth-anniversary retrospective makes clear that the doctrinal fault lines have not healed. A renewed petition before the Supreme Court now expressly asks the Justices to overrule it.
What changed in 2025 and 2026 is the character of the projects driving the fight. Three categories of private infrastructure have pushed eminent domain back to the top of every state legislative agenda.
Carbon Capture & CO2 pipelines
The Congressional Research Service has cataloged a rising tide of landowner resistance to carbon dioxide pipelines crossing the Midwest. The Iowa Law Review has written at length about the lessons of clean energy infrastructure disputes, and in early 2026, the Iowa House advanced legislation to ban eminent domain for CO2 sequestration pipelines altogether.
Data Center Transmission
The explosive growth of artificial intelligence workloads has created unprecedented demand for electricity, and the transmission corridors that deliver it. Reporting from The Allegheny Front describes a 107-mile, four-state project seeking certificates of public convenience so that a private energy company can exercise condemnation power to serve data centers in Virginia. The Congressional Research Service has separately analyzed the federal permit framework that governs these projects.
State Constitutional Amendments & Ballot Initiatives
As the Brennan Center’s State Court Report has tracked, state legislatures and voters continue to tighten the public use standard, often through constitutional amendments that reach further than the post-Kelo statutory fixes enacted in 2006 and 2007.
The common thread is that private developers increasingly hold, or seek, delegated eminent domain authority. When that authority collides with the privately held fee title of a Florida business or developer, the legal questions are no longer academic.
Where Florida Stands: Stronger Protections, but Not Absolute
Florida has one of the strongest property rights regimes in the country, a point our firm has emphasized in our Eminent Domain Condemnation Issues overview. Three features of Florida law set the baseline.
First, Florida’s Constitution guarantees full compensation, not merely the federal “just compensation” standard. Under Article X, Section 6 of the Florida Constitution, no private property may be taken except for a public purpose and with full compensation paid to each owner. This standard drives the firm’s work on business damages, a recovery head that Florida affords more generously than most jurisdictions.
Second, Florida’s post-Kelo reforms are statutory and specific. Section 73.013, Florida Statutes restricts the transfer of condemned property to private entities and carves out a tightly drawn list of permitted conveyances, such as common carrier uses, certain transportation corridors, and defined utility functions. Section 73.014 prohibits the use of eminent domain to eliminate slum or blight as a standalone justification. The Institute for Justice’s Florida survey rates the state among the most protective in the nation on this axis.
Third, Florida imposes meaningful procedural safeguards before any condemnation lawsuit is filed. We walked through those requirements in our post on the pre-suit procedures the government must follow and in our deeper analysis of protecting property interests in government takings.
That said, Florida is not immune to the private infrastructure pressure building elsewhere. Senate Bill 462, which took effect July 1, 2025, expanded the Florida Department of Transportation’s authority to acquire corridors years before construction is scheduled to begin. We broke down the practical consequences in Florida’s New Eminent Domain Rules for Business Owners. Early acquisition authority is not a Kelo-style economic development taking, but it does widen the timeline over which a business may face condemnation uncertainty, and it reflects a legislative appetite for faster, broader public-private infrastructure delivery.
The Pressure Points for Florida Real Estate and Business Owners
Real estate development in Florida depends on predictable land assembly, reliable utility service, and a clear title. Several current trends sit at the intersection of those three needs and the evolving eminent domain debate.
Energy Corridor Demand
Florida’s growth in large-load industrial users, data processing, and distribution has created pressure to expand transmission capacity. Developers operating in the energy industry should anticipate that right-of-way acquisition will not always proceed through voluntary easements. Knowing how the firm approaches easements and restrictive covenants and rights of way and property value is essential before signing any grant of easement in the shadow of potential condemnation.
Transportation Expansion
Florida’s population growth continues to push state and local agencies to acquire corridors for roadway, transit, and freight projects. Companies in the transportation and logistics industry are often on both sides of these takings, as petitioners when operating under delegated authority and as landowners when a new corridor cuts through a distribution facility.
Public-Private Partnerships
A growing share of Florida’s civic infrastructure is delivered through public-private partnerships, where a public sponsor exercises eminent domain to assemble land for a project designed, built, financed, and operated by a private concessionaire. These structures fit within Florida’s public use framework, but they blur the line between traditional government takings and projects that primarily benefit a private partner. Scrutinizing the allocation of eminent domain risk in the concession agreement is a core diligence item.
Commercial Redevelopment
Owners and developers active on the Real Estate Development, Sales & Leasing Industry Legal Blog and within our Real Estate Development and Construction industry practice should pay close attention when a municipality begins invoking community redevelopment authority, tax-increment financing, or similar structures that historically relied on the economic-development theory rejected by Florida after Kelo.
Florida’s full-compensation guarantee and business-damage remedy are among the most powerful in the country, but only when they are asserted correctly and on time. If a partial taking threatens your store, warehouse, office, or development site, connect with a Jimerson Birr eminent domain attorney to quantify what you stand to lose and what you can recover.
What Commercial Property Owners Should Do Now
When a condemning authority (public or delegated private) sets its sights on your property, the early decisions matter more than the courtroom showdown. Our detailed walkthrough in Understanding the Eminent Domain Process for Florida Commercial Property Owners lays out the full sequence. A few practical points bear emphasis in the current environment.
Vet the taker’s authority early.
Ask whether the condemning party is a governmental entity exercising its own eminent domain power or a private entity exercising delegated authority under a statute, certificate, or franchise. The scope of that authority is often narrower than it first appears, and challenges to the necessity and public purpose findings are most effective before an order of taking is entered. Our post on defending eminent domain condemnation explains how this plays out in litigation.
Received a letter, a survey request, or an informal offer from a utility, pipeline company, or government agency? The window to challenge authority and public-purpose findings closes quickly once a petition is filed. Schedule a confidential consultation with Jimerson Birr’s eminent domain team before you respond to anyone.
Do not sign the first easement offered.
Pipeline, transmission, and telecom developers frequently approach landowners with form easement documents that purport to grant broad rights in perpetuity. Voluntary signatures can waive compensation arguments that would otherwise be available if the developer later resorted to condemnation. Compare the offer to what Florida law would require and consider engaging counsel before executing anything.
Quantify business damages thoughtfully.
Florida’s unique business damage remedy is powerful, but it is also technical. Our three-part series walks through the introduction to business damages, the methodology for calculating and proving them, and the strategy for resolving business damage claims. Early engagement with a forensic accountant or business valuation expert pays for itself many times over.
Preserve inverse condemnation arguments.
When government or quasi-governmental action physically invades, destroys the use of, or substantially interferes with your property without a formal taking, Florida recognizes inverse condemnation claims. The doctrine is fact-intensive, and we have written separately on when government actions rise to inverse condemnation.
Understand temporary construction easements.
Even when a taking appears small on paper, temporary construction easements can shut down a business operation for months. Our guide to navigating temporary construction easements and our companion piece on maximizing compensation for TCEs discuss how to properly value these intrusions.
The Bigger Strategic Picture
The renewed eminent domain debate is not simply a rehash of Kelo. The 2005 fight was about urban redevelopment. The 2026 fight is about the physical infrastructure of the energy transition, the computing buildout, and the interstate movement of goods and people. Those projects generate enormous economic value, but much of that value accrues to private project sponsors, their lenders, and their off-takers. Landowners and small businesses that sit in the path of the new infrastructure are understandably skeptical of policies that socialize the costs of private projects while privatizing the gains.
Florida’s framework, with its strong public use limits, full compensation guarantee, and statutory restrictions on transfers to private parties, is better calibrated than most. Even so, the legislative response to SB 462 shows that rules can shift quickly when the policy winds change. Developers planning real estate transactions and disputes with long entitlement horizons should build contingency plans for condemnation into their pro formas. Government entities exercising or delegating eminent domain power should document the public purpose and reasonable necessity of their takings with rigor, because the evidentiary bar in Florida remains high. Business owners who believe they may be targeted should track the Florida Eminent Domain Law blog archive for legislative and case law developments.
Planning a project where condemnation risk sits on either side of the closing table? Our real estate and eminent domain attorneys help developers, lenders, and investors price condemnation exposure into deal terms, easements, and concession agreements. Reach out to Jimerson Birr to put that analysis to work before you sign.
How Jimerson Birr Helps
Our eminent domain team represents Florida property owners, lenders, developers, and businesses at every stage of the process, from pre-condemnation planning and negotiation through order of taking hearings, mediation, trial, and appeal. Because Florida law generally requires the condemning authority to pay the landowner’s reasonable attorney’s fees and costs in a successful eminent domain matter, engaging experienced counsel typically costs the landowner nothing out of pocket. If you have received a letter from a governmental agency, utility, pipeline company, transmission developer, or other entity claiming a right to acquire your property, or if you suspect that a public or quasi-public action has diminished your property’s value, contact our eminent domain team before you respond.
The debate over eminent domain for private infrastructure is not going to quiet down. The projects are too large, the capital at stake is too great, and the land is too valuable. What landowners and developers can control is the quality of their preparation.
Talk to a Florida Eminent Domain Attorney
If a governmental agency, utility, pipeline developer, transmission company, or other entity has contacted you about acquiring your property, or if public or quasi-public action has already begun to affect your land or your business, do not wait to get counsel involved. Early strategy shapes every dollar of compensation and every inch of property preserved. Contact Jimerson Birr today to schedule a consultation with our eminent domain team. Florida law generally requires the condemning authority to pay reasonable attorney’s fees and costs in a successful eminent domain matter, so protecting your property typically costs you nothing out of pocket.