Category Archives: Eminent Domain

The Little Pink House

George Will’s April 18, 2018, column is on the new movie, “The Little Pink House,” about the Kelo case, in which eminent domain was granted for commercial developers. Will characterizes it as “a bite-your-nails true-story thriller featuring heroes, villains and a history-making struggle over . . . the Constitution’s takings clause.” Those of us dealing with greedy pipeline developers know all about being on the receiving end of eminent domain lawsuits filed by for-profit companies arguing that their pipelines carrying fossil fuel are for the public good.

Will explains the background of the 1998 New London CT case, where a private development company wanted to entice big pharmaceutical company Pfizer to locate on land in a blue-collar residential neighborhood, and the city of New London allowed the development company “to wield the awesome, potentially life-shattering power of eminent domain if, as happened, it failed to persuade all the homeowners to sell for an upscale private development to ‘complement’ Pfizer’s facility. Some, led by Susette Kelo…, refused.”

Kelo vs City of New London, lost in the Connecticut Supreme Court in a 4-3 decision, then went on to the US Supreme Court, which, in a 5-4 decision, accepted the state court’s arguments, virtually erasing the Constitution’s circumscription of government’s eminent-domain power.

Will summarizes the Court’s action: “To seize Kelo’s pink house, New London did not assert blight. Instead, it argued that ‘public use’ is synonymous with ‘public benefit,’ and that the public would benefit more from Pfizer paying more taxes than would Kelo and her neighbors. During oral arguments, Justice Antonin Scalia distilled New London’s argument: ‘You can take from A to give to B if B pays more taxes.’ In a dissent joined by Chief Justice William H. Rehnquist and Justices Clarence Thomas and Scalia, Justice Sandra Day O’Connor warned that the decision’s consequences ‘will not be random’: Factions whose affluence makes them desirable taxpayers and whose political influence makes them politically potent will join governments in seizing the property of low-income citizens who are not as lucrative for local governments.”

The decision gave government officials the power to bulldoze a neighborhood for the benefit of a multibillion-dollar corporation.  Which they did.  BUT THEN – the project that prompted the lawsuit, for which people lost their homes, and for which the residential area was bulldozed, never happened.

Sound like a familiar strategy? You bet it does!

Read George Will’s full column here.

Watch the movie trailer here.

NC Judge Rules in Favor of Two Landowners

On Wednesday March 14, 2018, Atlantic Coast Pipeline’s motion asking a federal judge in US District Court in Elizabeth City NC to force Marvin Winstead Jr., Ronald Locke, and 11 other hold-outs to allow contractors to immediately begin tree-cutting on their land. Standard practice for eminent domain is to pay up front, but since they had been unable to reach any agreement with landowners, ACP asked to use “quick-take,” agreeing to a bond that supposedly guarantees landowners will be paid after a jury determines an appropriate amount.

ACP argued that they would suffer “irreparable harm” if they couldn’t proceed. According to NC Policy Watch, “the landowners will suffer no such harm from allowing construction to begin now, ACP lawyers claim. ‘What is the harm in giving us access now or later?’ Richard D. Holzheimer, Jr., an attorney with McGuireWoods, the firm representing the ACP, asked the court. He acknowledged the project would inflict ‘irreparable harm’ but ‘not from early access.'” [Note the admission by the ACP lawyer that the pipeline would cause “irreparable harm” to landowners.]

On Friday March 16, 2018, US District Court Judge Terrance Boyle ruled that Winstead and Locke do not have to allow Atlantic Coast Pipeline contractors on their property to begin tree-cutting – at least for now – because neither had been given a reasonable opportunity to negotiate with ACP, LLC. Although Winstead received an offer from the ACP in January 2016, a surveyor later told him his property was not on the route. Locke tried to communicate with ACP LLC, but they never responded.

However, Boyle ruled in favor of the ACP in the cases of the other 11 landowners, saying the ACP may invoke eminent domain on their properties. As a security, the ACP must deposit with a federal district court clerk an amount three times the appraised value of each parcel it plans to condemn, and must also obtain a bond twice the appraised value of the parcels.

Read a fuller report on the March 14, 2018, hearing here, and a fuller report on the judge’s March 16 decision here.

About Pipelines: The Short Form

A summary sheet prepared by Water Is Life. Protect It.

The Mountain Valley and Atlantic Coast fracked gas pipelines:

-are not needed by, nor will they bring energy to, the communities whose water and safety they threaten.

-will increase the cost of natural gas to Virginia ratepayers, first because of unneeded costly new infrastructure and later because the march to the sea for export will raise domestic natural gas prices 2 to 3 times.

-represent an immoral and illegal use of eminent domain to seize private land for corporate gain and not common good.

-are a clear and documented threat to the drinking water of over 12 million people either as a result of increased sedimentation from construction or from operational leaks of gas and fracking chemicals.

will not create local permanent jobs or even temporary local construction jobs.

-will more than double the greenhouse gas emissions for the Commonwealth of Virginia.

-against all scientific advice and warning, will be built over karst terrain, a geologic structure that produces most of our region’s clear pure water, but that is subject to sudden and unpredictable sinkholes and unexpected water connections and damages.

-pose a significant and documented risk of explosion and fire in their blast zones of 2,200 feet

-have and will continue to lower the value of any land they are on.

-represent stark environmental racism (especially the placement of the proposed Buckingham Compressor Station and routing through Native American lands) and environmental classism (targeting communities struggling with poverty and job loss).

-will reject the less costly and efficient upgrade of existing lines now running at less than real capacity in order to bring their developers a guaranteed profit of 15% on new energy infrastructure (MVP & ACP together well over 10 billion and rising).

-have revealed via their rushed and incomplete permitting and review processes, a level of corruption in Virginia government and regulatory agencies that is shocking and dangerous.

Fences and Neighbors

A message from Irene Leech, Buckingham County VA, March 3, 2018

How many of you think it’s only fair for the ACP to make the route adjustment we’ve asked for within our property?

These friendly, curious yearlings will check out everything new in their pasture, including people (they were coming to check me out when I snapped this picture). You can tell from the facilities in the background that we often bring cattle through this area. ACP wants to bisect our entire property and especially, this central field.

We have lots of evidence that pipeline folks do not understand cattle, farming, or the needs of our 100+ year old business. ACP wants to start construction in about a month, but so far, there’s been no discussion of fences to keep these animals or others who come through this field regularly, out of the construction area. I’m not sure the judge who said we’ve got plenty of time to build fence understands that a quick electric fence won’t do the job.

In 2014 we began asking for the pipeline to be moved within OUR property so that it will create fewer problems for our business during construction, reduce the frequency with which we must cross it from now on, and give us a little more safety by moving our buildings to the edge of the incineration zone instead of the middle of it. We are only 4 miles after the compression station so the gas will be at highest pressure. Because we are rural, we only get the lowest safety standards allowed, thinnest pipe, cut off valves 20 miles apart instead of 3 miles apart, last century remote monitoring. We’ve been told that our air is so clean we can afford the new pollution load.

Our multiple requests to move the pipeline within our property are well documented – and ignored by all involved. No written offer for an easement addressed any of our business or safety concerns/ requests. Ultimately, that’s why we never accepted an offer and why they took us to court this week.

Property rights have always been central values of our country and greatly impact the ability of people to achieve their American Dream. While many decry any hint of ANY limitation on what they call Second Amendment Rights, few seem to be willing to fight for property rights that I’d argue are even more central to our ability to succeed in our markets and to our very freedom as citizens.

The ACP is taking a strip of our property for a mile literally through the middle of our business.This will negatively impact us from this point on. It is a government sanctioned way of transferring our asset to a for profit company that is set up as an LLC so it has ultimate protections while granting us no protection (in fact putting extra obligations on us). From now on, the ACP’s interest in our property is legally higher than ours, even though we continue paying property taxes but get no annual income from this infrastructure, only a small one time payment (don’t know what it will be, but when we do, divide it by 70 years and see if it’ll even cover the taxes, much less compensate us for lost value, compensate us for the additional risk and daily hassle of respecting this unsafe infrastructure placed in the middle of our property).

Just curious, how many of you think it’s only fair for the ACP to make the route adjustment we’ve asked for within our property?

Bold Alliance Seeks Hearing to Challenge FERC on Eminent Domain

Press Release from Bold Alliance, February 26, 2017
Contact: Carolyn Reilly, Bold Alliance, 540-488-4358,

Bold Alliance Seeks Federal Court Hearing for Constitutional Challenge to FERC’s Abuse of Eminent Domain for Pipeline Permits

Washington D.C. — Bold Alliance and a collective of more than 50 landowners in the Appalachia region have filed a motion asking a federal court to schedule a date to hear oral arguments and expedite the proceeding in their lawsuit challenging the Federal Energy Regulatory Commission (FERC) over its unconstitutional abuse of eminent domain in pipeline permitting.

Carolyn Reilly, a regional organizer with Bold Alliance stated: “We’re demanding that the justice system follow through and give we, the people, complete due process under the U.S. Constitution. We have explicitly and repeatedly declined to engage with these pipeline corporations seeking eminent domain for their private gain, and we deserve to be heard in court to defend our inalienable rights under the fifth amendment.”

Bold’s lawsuit, filed in the Federal District Court in Washington, D.C. against FERC and corporations backing the proposed Mountain Valley and Atlantic Coast pipelines by landowners whose properties the projects would pass, challenges problems in the FERC certificate program that impact all landowners near all pipelines that seek to utilize eminent domain authority to take property against landowners’ wishes.

Bold’s motion filed today asks the court to expedite a hearing on the constitutional challenges in the case.

Separately, Bold Alliance late last week also filed motions requesting rehearings by FERC Commissioners of their issued notices to proceed for the proposed Mountain Valley Pipeline and Atlantic Coast Pipeline.

Bold argues in the motion that FERC’s granting of a notice to proceed while challenges remain pending violates landowners’ due process rights. By issuing the notice to proceed, the motion argues that FERC has also created confusion for landowners, who may believe FERC’s order is the final say needed by MVP to proceed. When in fact, MVP has not yet gained possession of many parcels of land, and cannot commence construction on parcels that it has not yet acquired.

View the motion for expedited hearing requests for FERC rehearings by Bold Alliance (scroll down past the press release).

See background on landowners’ eminent domain lawsuit against FERC.