Category Archives: Eminent Domain

Averitt is Panel Member at FERC Forum

Nelson’s Richard Averitt was at the Envision Forum hosted by the University of Kentucky Center for Applied Energy Research and FERC on October 20-21, 2019. He was there along with a couple hundred energy company execs and government policy makers, and was asked to sit on a panel as the only landowner voice.

The gas industry media outlet, Natural Gas Intel, quoted some of Richard’s comments: “‘I think there’s a very serious question about whether eminent domain should ever be used to produce a for-profit export project. I think that’s inconsistent with our beliefs around property rights, but particularly when you look at how the courts have extended the right to eminent domain to include preliminary injunctions, or ‘quick take,’ that collapses on landowners to be an absolute destruction of your right to due process…. The idea that eminent domain is only used as a last resort is a false narrative from a landowner’s perspective. It is used in every pipeline case if it’s on the table. Because when you sit down at the negotiating table, one of the two parties can walk away with virtually no negative impact, and the other one loses everything they care about.’

“In addition, conditional permits issued by the Federal Energy Regulatory Commission leave landowners powerless, Averitt said. Such permits allow companies to seize land and prepare it for pipeline construction, often destroying farmland even if the project never comes to fruition, he said. ‘To enable the taking of private citizen’s land and the destruction of that land at a time when those permits are still in question is unconscionable…that’s not an appropriate due process.'”

Richard thanks fellow landowner supporters Ron Evans and Mayor Kristin McLaughlin, with special thanks to Megan Gibson and Niskanen for getting them in the room.

And we thank Richard for so ably and articulately representing landowners!

Here are YouTube links for Richards comments and to the full panel discussion:

To download all of the above, click here.

Read the full Natural Gas Intel article here.

Virginia’s History of Displacemment


An article in the Washington Post on October 11, 2019, asks, Will Virginians be able to resist the Atlantic Coast Pipeline? It points out that backers of the ACP see the Supreme Court’s consideration of the ACP’s effort to cross the Appalachian Trail as one of getting government regulations out of the way of a private industry (supposedly) operating for the public good.

“But for people in central Virginia, the push for a pipeline is a story of government interference, part of a century of struggle between government authorities and vulnerable populations that have been displaced from the land. …. Urban and rural communities alike have their own collective memories of the encroachment of government-backed industry. Those memories are reflected in the diverse coalition that has come together to fight the pipeline.”

The article describes how “One of the largest land seizures in the history of the state took place in the same forest that Dominion now contests” when Virginia, in the late 1920s and early 1930s, used eminent domain to acquire 190,000 acres in the rural Blue Ridge Mountains, seizing or condemning the homes and farms of about 465 families, removing 2,000 people from land they had tended for generations. Virginia then donated the land to the federal government for Shenandoah National Park.

In 1964, under the guise of “slum-cleansing,” the city of Charlottesville razed Vinegar Hill, home to a thriving community of African American residents and black-owned businesses, Charlottesville’s center of black economic life and culture. The city destroyed 29 businesses and forced 500 residents into public housing – and then for 20 years the land sat unused.

And now in rural Buckingham County, the ACP’s compressor station threatens Union Hill, a historically black community. Residents there have spoken out against the pipeline – as have residents in Nelson County whose planned and established businesses would also be destroyed by the ACP.

The unusual coalition fighting the pipeline reveals “a surprising alignment of interests across traditional social, racial, economic and political boundaries. In Buckingham, Va., Baptists and yogis have joined to fight the pipeline. That unusual coalition is up against powerful forces: the Trump administration, a big energy company and a Supreme Court dominated by conservative justices. But for more than a century, the people of central Virginia have been battling the government over their right to control their land, farms, parks and city neighborhoods. Whatever happens in the Supreme Court this term, they’ll keep fighting.”

Supreme Court: Pipeline Fights to Watch

In an article published on September 30, 2019, E&E News considers “4 pipeline fights to watch this term.” The justices have the opportunity to consider:

  1. The Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail. “In Atlantic Coast v. Cowpasture River Preservation Association, Dominion Energy Inc. and other Atlantic Coast developers are fighting a 4th U.S. Circuit Court of Appeals decision that the Forest Service cannot authorize a path for the pipeline below the Appalachian Trail. The solicitor general filed a companion brief on behalf of the Forest Service. Environmental groups, meanwhile, have urged the justices not to take the case.”
  2. Whether developers of the Mountain Valley project can lawfully seize private property before paying. “Givens v. Mountain Valley Pipeline LLC challenges developers’ ability to immediately take private property for constructing the pipeline before providing payment, an approach known as ‘quick take.’ Their petition aims to overturn precedent set by the 2004 4th Circuit case East Tennessee Natural Gas Co. v. Sage, which allowed pipeline developers to begin construction on private property before paying, provided they had a preliminary injunction. The case is different from typical eminent domain disputes because it doesn’t challenge the legality of the practice, but rather when pipeline developers can take and build on the land.”
  3. A case involving state lands takings for the PennEast pipeline. “Energy lawyers are also closely watching whether a recent decision by the 3rd Circuit on condemning state-owned lands for pipeline development will eventually land in front of the Supreme Court. This month, the court ruled that the developer of the 120-mile PennEast pipeline through Pennsylvania and New Jersey could not use condemnation orders to build significant portions of the line through land owned by the Garden State. The case raises issues of sovereign immunity under the 11th Amendment to the U.S. Constitution and could have important implications for the expansion of pipeline projects in states that oppose oil and gas development. Judges for the 3rd Circuit said that pipeline developers can’t take a state to court for not selling an easement to build a pipeline.”
  4. Challenges over gas exports because the Federal Energy Regulatory Commission’s authority to delegate eminent domain power to pipeline builders is limited to projects in service of interstate commerce. “The U.S. Court of Appeals for the District of Columbia Circuit recently highlighted the issue in a decision over the use of eminent domain to build the Nexus natural gas pipeline through Ohio and Michigan. Those opposed to the pipeline argued that FERC improperly issued a certificate for the project based in part on commitments made by Canadian shippers. That raises the question of whether it is possible to justify that a project designed to supply energy to citizens of foreign countries will serve the public good. The case not only could affect pipelines that cross into Canada and Mexico, but also could have implications for pipelines feeding liquefied natural gas facilities.”

Read the full article here.

Powerless: The High Cost of Cheap Gas

When the U.S. declared the discovery of natural gas reserves large enough to propel the country to energy independence, property owners in West Virginia could never have imagined how that discovery might affect them. CBSN Originals and ProPublica traveled to West Virginia’s “gas patch” to meet landowners Beth Crowder and David Wentz, a once-married couple who found themselves in the crosshairs of Big Gas and joined forces to fight back.

Petition Challenging “Quick Take” to Go to U.S. Supreme Court

On July 3, 2019, attorneys for Katheryn Givens and other landowners on the Mountain Valley Pipeline route are expected to file their U.S. Supreme Court petition challenging a 4th U.S. Circuit Court of Appeals ruling that a lower court properly allowed developers to obtain immediate possession of property in the project’s path using “quick take.”

Although standard eminent domain proceedings require just compensation in exchange for acquiring land, immediate possession or “quick take” power allows developers to take private property months or years before actually paying. “Quick take” means landowners no longer have the ability to negotiate a fair price, nor do they have any way to recoup lost wages if a seizure interferes with their ability to earn money from their land before the court determines appropriate compensation.

Congress did not convey quick-take authority to pipeline developers in the Natural Gas Act, but several courts have nevertheless interpreted the Natural Gas Act in a way that allows developers to take land for projects long before the property owners receive a penny of compensation.

Click here to read the July 2, 2019, E&E News article on the expected filing with the Supreme Court; the article reviews the issues with “quick take” and the history of other challenges to it.

Click here to read the July 3, 2019, Roanoke Times coverage, Landowners ask U.S. Supreme Court to bar taking their property for pipeline.