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.
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.
From Allegheny-Blue Ridge Alliance’s ABRA Update 235:
The lawsuit challenging the certificate of the Atlantic Coast Pipeline (ACP) moved a step closer to being considered by the DC Circuit Court of Appeals with the filing of response briefs by the Federal Energy Regulatory Commission (FERC), on June 18, and Atlantic Coast Pipeline, LLC (ACP, LLC), on June 26. The pending case consolidates several individual suits brought by a group of ABRA members and other organizations, as well as several individual landowners. Counsel representing the plaintiffs include Southern Environmental Law Center and Appalachian Mountain Advocates.
The plaintiffs’ brief, filed on April 5, argued that: 1) FERC’s authorization of the ACP served no demonstrated need and that it’s finding of need based solely on precedent agreements between the project sponsors and affiliated utilities was insufficient; 2) the certification was based on unsupported assumptions and thus violated the Federal Environmental Protection Act (NEPA); 3) environmental justice considerations were improperly evaluated; and 4) the exercise of eminent domain was in violation of the Natural Gas Act and the U.S. Constitution because required conditions of the certificate were not followed.
FERC’s response brief argues that all required issues were properly addressed in the agency’s consideration of the project’s certification. The brief further states:
Over the course of an extensive three-year regulatory review process culminating in a rehearing order issued in August 2018, the Commission carefully weighed the evidence of public benefits against the potential adverse economic and environmental effects of authorizing the Atlantic Coast Pipeline and related Supply Header Project (together, the “Project”). Although the Commission found that the Project may result in some adverse environmental impacts, the Commission ultimately concluded that the Project, if constructed and operated in accordance with federal standards and specific environmental, safety, and regulatory conditions imposed by the Commission, will serve the public interest.
The ACP, LLC response brief makes contentions similar to FERC’s, that the agency’s decision-making process in issuing the certificate was supported by substantial evidence and was in full compliance with all applicable legal procedures. It is worth noting that many of the points made in the April 5 plaintiffs’ brief to which FERC and ACP, LLC responded are not addressed in their briefs.
The case has not yet been scheduled for oral argument before the DC Circuit.
On January 14, 2019, State Senator Frank Wagner introduced legislation authorizing utilities to acquire rights of way. [We wonder what help he had from Dominion in crafting the bill.]
Summary as introduced:
Public utilities; acquisition of rights-of-way for economic development sites. Authorizes a public utility providing water, sewer, electric, or natural gas service to conduct an Economic Development Program (Program). Under such a Program, the utility is authorized to acquire utility right-of-way for one or more qualified economic development sites. The measure establishes criteria for the Virginia Economic Development Partnership Authority to certify that a site is a qualified economic development site. The State Corporation Commission (SCC) is authorized to approve a proposal for a Program that satisfies certain conditions, including a finding that implementation of the Program will provide significant economic development benefits that might not otherwise be attained absent its approval. A utility’s capital investment is capped at one percent of gross plant investment in the aggregate of all of the utility’s Programs and at $5 million for any specific qualified economic development site.
The full text (pdf): 01/14/19 Senate: Presented and ordered printed 19104356D
History: 01/14/19 Senate: Presented and ordered printed 19104356D,
01/14/19 Senate: Referred to Committee on Commerce and Labor
Wintergreen Property Owners Association released this statement on December 19, 2018:
Following extensive negotiations, Wintergreen Property Owners (WPOA) and Dominion Energy have reached a financial settlement related to the condemnation of WPOA property for construction of the Atlantic Coast Pipeline (ACP). Terms of the settlement are confidential.
The WPOA, while understanding the principle of eminent domain, remains opposed to the chosen location of the Atlantic Coast Pipeline through its property. Like other landowners having property taken through eminent domain, WPOA had no good legal remedy to fight the condemnation of our land. While the settlement eliminates a costly protracted legal battle over condemnation, it leaves open other legal options to protect our community and allows our community an opportunity to move forward.
On Friday, November 16th, the Atlantic Coast Pipeline and Dominion filed for Quick Take in the US Western District of Virginia Federal Court in Lynchburg. Quick Take takes away the constitutional right to due process for every defendant. It also usurps Congressional authority to make and change laws. Call your Senator and Congressional Representative and tell them to issue a statement telling the courts to stand down!
The video is a crash course explanation of Quick Take and Eminent Domain as it relates to gas pipelines and to the Atlantic Coast Pipeline specifically. Richard Averitt, Nelson County landowner, explains Quick Take in lay terms.