The October 25, 2018, Roanoke Times reports that, “A group of landowners whose property was taken against their wishes for a natural gas pipeline is seeking relief from the U.S. Supreme Court. The appeal, which involves the use of eminent domain by Mountain Valley Pipeline, is believed to be the first time the nation’s highest court has been asked to consider a challenge involving the controversial project. Whether that will happen is far from certain; the court agrees to hear oral arguments and render a decision in only about 80 of the approximately 8,000 cases that get filed each year.”
The suit asks “whether eminent domain, a power normally invoked by governmental bodies for projects such as highways and power lines, should be awarded to a private company in pursuit of profits.”
A U.S. District Court dismissed the case in December, saying it lacked jurisdiction, and the 4th Circuit Court upheld the District Court ruling, which is now being appealed to the U.S. Supreme Court.
Mia Yugo, one of the attorneys for the landowners, said that, although a Supreme Court decision in the current case might come too late to help those filing the appeal, the landowners are taking a stand in hopes of helping future landowners in similar situations. “The right to private property secures our freedom from government overreach,” she said. “It is not a ‘left’ issue or a ‘right’ issue. It is an American issue.”
Watch this powerful recorded slide show narrated by Richard Averitt. Richard made the 11-minute presentation in September 2018 at a Congressional Briefing sponsored by the Niskanen Center. The presentation is deeply personal, and sheds light on the human side of the abuse of eminent domain and the entirely unnecessary Atlantic Coast and Mountain Valley Pipelines.
At a hearing before the 4th Circuit Court on September 25, 2018, Chief U.S. Circuit Judge Roger Gregory questioned the validity of eminent domain laws, describing them as a holdover from the days when Americans were royal subjects.
The case before the court, brought by landowners in Virginia and West Virginia, challenges both the “quick-take” authority federal regulators granted to Mountain valley Pipeline and a lower court ruling saying MVP could go forward even though property owners have not been compensated.
As the hearing began, Gregory questioned East Tennessee Natural Gas Co. v. Sage, a 14 year old ruling from the Court establishing standing for natural gas companies to take land prior to paying compensation.
According to Courthouse News Service, “‘This is something extraordinary the courts have granted and the question is should it happen now before it’s done,’ Gregory said. ‘You want to abort the [normal and lengthy eminent domain] process and take it now. Maybe Sage is wrong.’ he said. Wade Massie, the Stuart and Eskridge attorney who is representing the developers, appeared stunned by the judge’s comments and referred back to the rights granted his clients by the permit, including the right to take the land prior to payment. ‘We have the right to it now,’ he said, stressing he believed the company had followed the letter of the law to date. ‘It was done with notice, these landowners had discovery and evidence hearings.’ Part of the urgency of the land claims comes from the nature of the FERC permit: it only lasts three years. And while parts of it have stalled in the courts, Sage allows the taking of land prior to all legal disputes being resolved. To do otherwise would expose the developers to economic harm, but the status quo harms property owners who may wish to challenge a taking, lawyers for the land owners said. Gregory appeared to agree.”
Rep. Sensenbrenner’s (R-WI) Property Rights Bill passed the US House of Representatives on July 23, 2018. An article in The Daily Caller for July 25, 2018, says the legislation “would freeze federal economic development funds to any state or local government that seized property from one owner and gave it to another owner for ‘economic development.’ The Private Property Rights Act, introduced by Republican Rep. Jim Sensenbrenner of Wisconsin in 2017, was co-sponsored by Democratic Rep. Maxine Waters of California and Republican Rep. Brian Fitzpatrick of Pennsylvania. It was an undertaking thirteen years in the making for Sensenbrenner, who first introduced a version of the bill after the Kelo v. New London Supreme Court decision in 2005. It was the fourth time Sensenbrenner had introduced the bill in Congress and the fourth time it had passed in the House.
According to Sensenbrenner’s press release, “The bill addresses the controversial Supreme Court decision in the 2005 case Kelo v. City of New London, which expanded the eminent domain power granted by the Fifth Amendment of the Constitution. In Kelo, the Court ruled that ‘economic development’ can be justified as a “public use” under the Constitution’s Takings Clause. To combat this expansion of power, H.R. 1689 would make any state or locality that uses the economic development justification for eminent domain ineligible from receiving federal economic development funds for two years. This creates a major incentive for governments to respect the private property rights of its citizens. Additionally, the legislation bars the federal government from exercising eminent domain powers for the purposes of economic development.”
The Property Rights and Pipeline Center notes that the bill “has passed in the House several times before but has never gotten to the Senate. Also, this bill excepts pipelines meaning it does not cover eminent domain for pipelines. It ends eminent domain for ‘economic development’ (the issue in the Kelo case),” but adds that the term eminent domain shall not include, “(iv) for use as an aqueduct, flood control facility, pipeline, or similar use.”
The Property Rights and Pipeline Center works to connect those fighting for their land against pipelines. They want to unite and amplify the voices throughout the land working to preserve our property rights. Friends of Nelson is part of their network. Sign up for their occasional e-newsletter list here.
E&E News reported on July 26, 2018, that “In a high-stakes ruling yesterday, the 4th U.S. Circuit Court of Appeals found that a lower court was right to dismiss legal arguments from a group of Virginia and West Virginia landowners concerned about FERC’s approval of EQT Corp.’s Mountain Valley pipeline. The litigants were taking aim at FERC’s practice of letting pipeline builders use eminent domain authority to take land once their project is approved. That practice is unconstitutional, the landowners say, because it violates property rights protected under the Fifth Amendment. But according to the 4th Circuit, the courts have no jurisdiction to hear the complaint because the landowners didn’t go through FERC’s standard administrative process for pipeline challenges. The ruling affirms the U.S. District Court for the Western District of Virginia’s decision to dismiss the claims late last year….
“Under the Natural Gas Act, pipeline challengers must raise their concerns with FERC and wait for an agency decision on the matter before going to a federal appeals court. The landowners argued that their case, a broad constitutional challenge, is distinct from routine pipeline complaints raised under the NGA. Plus, they argued, waiting for FERC to finish its administrative process would deprive them of meaningful judicial review. The commission routinely issues ‘tolling orders’ to give itself more time to consider rehearing requests from challengers. Pipeline construction and land acquisition are usually well underway before the process is complete.”
An article in the July 19, 2018, Wall Street Journal discusses the abuse by pipeline builders of eminent domain and the routine barriers that are part of FERC’s process, barriers that deny landowners the right to meaningful appeal. The article covers the variety of ways in which FERC heavily favors pipeline companies over landowners.