12-3-17 NJ.com. N.J. environmentalists use new legal strategy to fight pipelines. “Garden State environmental advocates think they’ve found a way to stop pipeline companies from acquiring the land they need in the first place, and a pipeline project in New Jersey may serve as the legal battleground. The New Jersey Conservation Foundation has sued the Federal Energy Regulatory Commission on the grounds that the agency’s use of eminent domain to take over land for the construction of interstate natural gas pipelines is often unconstitutional. …. The lawsuit, filed in federal court in November, cites the Fifth Amendment requirement that any eminent domain action be made for ‘public use.’ Environmentalists claim that FERC has consistently failed to prove that pipeline projects are necessary, and thus, the eminent domain land seizures further private profits rather than the public good. ‘We’ve taken this action because it’s become abundantly clear that the way that [FERC] is approaching their review of proposed pipelines really is at odds with the Fifth Amendment of the Constitution,’ said Tom Gilbert, a campaign director for the New Jersey Conservation Foundation.”
On December 12, 2017, NBC29 reported that Dominion had begun the process to take land for the Atlantic Coast Pipeline by asking a federal court to allow it to use eminent domain for certain properties along the proposed route. Some of the affected landowners first learned of the suits against them from news reports.
Jonathan Sokolow’s article in Blue Virginia on December 18, 2017, has the eye-catching headline, Dominion Sues to Condemn Ralph Northam’s Family Farm to Build the Atlantic Coast Pipeline. Everything but the Ralph Northam part is true – but less well known and less powerful Virginians are not so lucky.
“Dominion, the main company behind the ACP, is not deterred by the fact that the Virginia State Water Control Board just refused to issue a permit to start construction until further studies are completed. Nor is Dominion deterred by the fact that three of the seven members of the Board voted outright to kill the project – meaning one more no vote in the future, which is very possible, would stop the pipeline in its tracks. These facts did not prevent Dominion from ruining the holiday season of many Virginians.”
Sokolow writes about property owners with 2 acres, 5 acres, 10 acres “sued by Dominion in federal court on December 8 in an action to ‘condemn’ – that’s the word Dominion uses -” their properties. Dominion also sued Variety Shade Landowners of Virginia to condemn a 1.86 plot they own – ironic, because Variety Shade previously sold Dominion 68 acres in Buckingham to build the massive compressor station. But Dominion now wants that additional 1.86 acres.
Imagine you own and live on one of these small plots. “Dominion wants ‘immediate entry and possession’ of the property. It claims that it ‘must begin construction of the ACP project as soon as possible’ because that is the timetable Dominion set. Dominion wants the unfettered right to ‘construct, operate, maintain, replace, repair, remove or abandon the ACP Project’ – yes, they want to reserve the right to abandon the project – and it wants the right to ‘change the location of the installed pipeline’ on the property ‘as may be necessary or advisable.’ …. Dominion wants the right to enter and leave the property ‘through any existing roads on the Property’ – for example, a driveway – and that Dominion intends to use those roads ‘to transport pipe, vehicles, machinery, persons, equipment, or other materials to and from’ the property. And Dominion seeks a court order to allow it ‘to fell trees and clear brush or other vegetation as necessary.’ …. Dominion tells the court that the owner of the property can still live there and use his property ‘in any manner that will not interfere with the use and enjoyment of Atlantic’s rights.'”
Yes, the rightful owners may use the property as long as they do not interfere with Dominion’s “use and enjoyment.” And to top it off, Dominion says it would suffer “irreparable harm” if the properties are not condemned immediately, while the harm to landowners would be “slight at best.”
(For a description of what “slight at best” might mean just during the construction process, read the December 18, 2017, article about Atlantic Sunrise construction by Jack McCallum, What happens when a pipeline is built in your backyard.)
Harking back to his startling headline, Sokolow says, “We have commented elsewhere about the failure of many Democrats, particularly in Northern Virginia, to speak out against the Atlantic Coast and Mountain Valley pipelines – what Dr. Martin Luther King, Jr. called the ‘appalling silence’ of the good people. One wonders whether Ralph Northam would stay silent if the land being condemned belonged to him. What if these condemnation proceedings were taking place in Arlington, or Alexandria, or Falls Church, or Fairfax, or Reston? What if Dominion wanted to take your land and was telling a court that the harm you would suffer would be ‘slight at best?’ Would you stay silent?”
On December 18, 2017, the Roanoke Times reported that a second court challenge had been filed against the Virginia State Water Control Board over water quality certification for Mountain Valley Pipeline. Petitioners “contend the board lacked adequate information on which to find a ‘reasonable assurance’ that the 303-mile long buried pipeline would not contaminate the waters of Western Virginia.” They point to the fact that the SWCB, when it gave approval for the Atlantic Coast Pipeline, took the unusual step of delaying the effective date until several environmental impact reports are completed, but they did not do that for the MVP.
“‘It makes no sense,’ said Mara Robbins, an organizer with the Blue Ridge Environmental Defense League, one of the petitioners in the second court challenge. They delayed the ACP permitting until erosion and sedimentation reports are complete. Many of the issues presented were identical. Yet the permits for the ACP were delayed and the ones for the MVP were not? They need to go back to the drawing board and get this right.'”
The article says that, “Shortly after the case was filed Monday, the court of appeals issued an order that consolidates it with the earlier challenge brought by the Sierra Club, Appalachian Voices, the Chesapeake Climate Action Network and Wild Virginia.”
On Friday December 8, 2017, Appalachian Mountain Advocates filed a petition for review with the US Court of Appeals for the Fourth Circuit to overturn Virginia’s unlawful approval of the fracked gas Mountain Valley Pipeline (MVP). The litigation was filed on behalf of the Sierra Club, Appalachian Voices, the Chesapeake Climate Action Network, and Wild Virginia. The filing came the day after contentious hearings that ended with the Virginia State Water Control Board issuing a certificate under the Clean Water Act needed by MVP to begin construction.
Wild Virginia’s press release says the filing “asserts that the Board has failed to base its decision on adequate and complete information and, therefore, lacks a rational basis for its action. All parties admit that vital information and analyses were missing at this time yet the Board endorsed DEQ’s recommendation to approve the rushed permit decision.”
The press release also highlights the fact that the the Board issued the permit regardless of seriously incomplete information from MVP. “‘The DEQ’s erosion and sediment control plans and stormwater control plans are incomplete and have not been presented to the Board,’ said David Sligh, Wild Virginia’s Conservation Director. ‘Karst analyses are incomplete. Data related to specific waterbody crossings is non-existent. The Nationwide 12 permit has not yet been authorized and determined to be applicable. The procedure is not based on sound science and is legally flawed. We cannot accept this betrayal of our trust and our rights without challenge,’ Sligh stated.”
Washington Post coverage of the filing is here.
The Triangle Business Journal reported on December 4, 2017 that the ACP has filed its first eminent domain action in North Carolina (although the NC Department of Environmental Quality has not issued 401 water certifications yet!). “On Friday, ACP filed two suits to acquire North Carolina tracts through eminent domain, an action spokesman Aaron Ruby has called a last resort.”
Friends of Nelson urges all landowners on the proposed ACP route to retain an eminent domain lawyer. Most landowners on the ACP route in Nelson County have legal representation. If you do not, email us at firstname.lastname@example.org and we will give you the information you need to protect yourself and your land. (And please take a look at our Eminent Domain page.) We will continue to stand up and support and back up landowners threatened by the ACP. This is not a done deal. We are still here and ready to help!
“If you won’t let us do what we want, we’ll sue you! See you in court” That seems to be the standard approach of the pipeline companies.
In late October, the Mountain Valley Pipeline sued hundreds of Virginia landowners to gain pipeline easements and access through eminent domain on about 300 private properties, seeking a court order for immediate access to the properties. On November 16, 2017, a federal judge slowed MVP’s effort to fast-track one of two lawsuits against hundreds of landowners seeking to use eminent domain to gain easements for construction over the more than 300-mile route across West Virginia and Virginia. Judge John Copenhaver indicated “he is going to press MVP attorneys to personally serve all of the landowners with the lawsuits against them, and demand detailed explanations if the company ultimately says it couldn’t find all of the owners and wanted to rely on a public notice in the newspaper instead. ‘The court wants these people located,’ Copenhaver said. ‘The court is expecting due process.’”
On November 16, 2017, the Charlotte Observer reported that, as soon as it receives all state and federal permits, the Atlantic Coast Pipeline is ready to start seizing private property early next year to start construction on the 600-mile ACP, and will begin legal condemnation proceedings against holdout property owners who will not voluntarily lease their land for the project and agree to the financial compensation offered by the ACP for the use of their land.
And now the Mountain Valley developers have filed federal suit against the three members of West Virginia’s Fayette County Commission, saying they have unreasonably delayed progress of the MVP because the Commissioners denied a rezoning application to build one of three compressor stations along the pipeline route. The MVP promptly filed suit, asking that the Fayette commissioners be prevented from enforcing the local zoning ordinance. MVP says, “Fayette County Commission has now delayed the local permitting process so much that MVP’s construction schedule will be unreasonably delayed if MVP continues to seek issuance of a rezoning approval and required permits under the Fayette County zoning ordinance.”
What it all boils down to is huge for-profit corporations with an eye only on their bottom line expecting to do as they want, building unnecessary pipelines that will permanently scar the land of public and private property owners and limit the uses of that land, yet provide no benefit for citizens in the areas through which the pipelines pass. Then, when property owners don’t want to relinquish their private property or when elected officials want to uphold local ordinances, the corporations sue – and cry bitterly about how their projects are being “unreasonably delayed.”