The need for eminent domain reform grows more urgent with each day the Supreme Court’s 2005 decision in Kelo v. New London stands, but Governor Pataki’s latest gambit on the issue is the wrong reform at the wrong time. Mr. Pataki has signed a bill that limits use of eminent domain for one of the few purposes that property rights advocates recognize as an acceptable exercise of the power. In effect, Mr. Pataki, with shocking cynicism (pardon the pun), has found a way to turn eminent domain “reform” into the same kind of governmental abuse the Fifth Amendment’s limitation on eminent domain was intended to curtail.

The bill sets stringent conditions on the use of eminent domain for the construction of electric transmission lines. The founders crafted the Fifth Amendment’s takings clause by candlelight, but they had public works projects like roads and other rights of way in mind. Even in a more restrictive era, sewers, water mains, sidewalks, and electric lines counted as legitimate “public uses.” Thus, while preserving the state’s right to seize land for, say, a new office tower for the New York Times or housing for a Ratner project, the governor’s bill tries to forestall one of the few exercises of eminent domain that’s in keeping with the founders’ intent.

It gets worse.The bill is specifically targeted at the New York Regional Interconnect, a company attempting to build a 200-mile high-density transmission line to the electricity-starved lower Hudson region from electricity-flush upstate. Hence a provision in the new law barring eminent domain for projects that “will increase electric rates in any part of the State,” which is one of the fears frequently raised in respect of the project. While NYRI might indeed cause small price increases for upstate consumers who currently benefit from a surfeit of electrons, NYRI’s proponents claim that the line would save city consumers $11 billion over 20 years by increasing downstate supply and helping to free New Yorkers from dependence on the expensive coal and natural gas burned at city power plants.

NYRI may or may not be the best way to meet the city’s growing electricity demand. Thanks to this law, New Yorkers might not have a chance to find out, since the rule could end up cutting off the project before it has even had a chance to go through the normal review process. Eminent domain abuse is ripe for reform, in New York more than in many places. Such reform needs to define abuses of eminent domain as uses of the power that were not intended by the men who founded America. It is hard to imagine that a power transmission line, whether or not it ultimately gains regulatory approval, is not the kind of public work the founders had in mind. Mr. Pataki’s “cure” for eminent domain abuse is turning out to be just as bad as the disease.