July 20th, 2025 — By Jeff Tibbals — In Articles
Private Land, Public Projects: What the Latest Change in South Carolina’s Eminent Domain Law Means for You
Our OCA Primary Member from South Carolina, Jeff Tibbals, has put together the summary and comment below on recent developments in South Carolina’s eminent domain laws, which should be of particular interest to South Carolina property owners
Recent South Carolina legislation raises an important legal question about the extent to which private utility companies—such as Dominion Energy and Santee Cooper—can exercise eminent domain powers in South Carolina. This issue is particularly relevant in light of the controversial House Bill 3309, the “South Carolina Energy Security Act,” which seeks to streamline the approval and construction of major energy infrastructure projects across the state. Eminent domain for economic development is not a new concern, as highlighted in Kelo v. City of New London, 545 U.S. 469 (2005), where the U.S. Supreme Court upheld a city’s use of eminent domain to transfer non-blighted private property to a private developer, holding that projected economic revitalization satisfied the Fifth Amendment’s public use requirement. The decision prompted a national backlash over the erosion of protections for private property owners. Almost two decades ago, in response to Kelo, South Carolina amended its constitution to restrict the use of eminent domain for economic development. The amendment clarified that takings must serve a clearly defined public use, and not merely economic growth or commercial transfer. This state-level reform was intended to reinforce the constitutional boundary between public benefit and private acquisition of land.
House Bill 3309 introduces several provisions that streamline the approval process for major energy infrastructure projects. While the bill applies broadly to other projects, it specifically authorizes the construction of a 2,000-megawatt natural gas facility in the Canadys area of Colleton County. The bill allows for joint utility ownership and infrastructure planning while inherently creating a regulatory fast-track permitting regime. Applications not denied by the Public Service Commission (PSC) within six months would be automatically approved. The PSC is also granted new authority to lead economic development initiatives and exercise emergency powers—functions traditionally reserved for broader state or local planning entities. Though framed as an energy reliability measure, the bill’s structure reflects a parallel aim of facilitating economic development through infrastructure expansion. The provisions concentrating decision-making power in the PSC, coupled with default permit approvals, reduce the role of contested review and shift the emphasis toward expedited implementation. Essentially, the bill will make it easier to take private property for utility cooridors. These mechanisms are similar to the economic justification endorsed in Kelo, despite South Carolina’s constitutional departure from that framework.
In response to these concerns, the South Carolina Senate proposed a series of amendments aimed at increasing transparency and participation among property owners. Article 3, titled “Energy Infrastructure Projects,” included in Section 58-37-120(E) proposed procedural safeguards for property owners. Utilities would have been required to provide written notice by certified mail at least sixty days before filing a permit application. The notice would include a project description, preferred and alternative routes, and contact information for regulatory staff. A public meeting would be required within thirty days of the application and notice of that meeting would be published in local media and mailed to potentially affected landowners. Additionally, utility customers would be permitted to address the PSC as public witnesses without having to formally intervene in the proceedings.
While these provisions would not have altered the underlying authority of utilities to pursue condemnation, they offered a structured opportunity for early community engagement. Section 58-37-120(E) functioned as a procedural enhancement to the existing eminent domain framework—supplementing notice and feedback protections without obstructing infrastructure development. However, the House ultimately removed Article 3 Section 58-37-120(E) from the final version of the bill. As a result, the procedural safeguards adopted by the Senate were not retained. The bill, as enacted, has now become law without those notice and participation provisions, leaving fewer formal avenues for landowners to engage in the process before project approval and potentially the takings of their land. Overall, balancing infrastructure development with property rights has long been a legislative and constitutional concern. The Senate’s proposed language offered one approach to reconciling these interests, and its removal by the House raises questions about how procedural fairness will be ensured in future energy development efforts. Whether those protections are reinstated in later legislation may determine how South Carolina continues to interpret and apply the principles it adopted after Kelo. Due to the abbreviated regulatory process for projects described here, landowners should be diligent in following updates on developments that could affect their property. Inquiries regarding this process can be sent to Jeff Tibbals of Bybee & Tibbals at jst@bybeetibbals.com.
Co-Author Acknowledgement: Lyles R. Parsell
