Category Archives: Eminent Domain

Congressional Hearing on Natural Gas Act


The House Energy and Commerce Committee will hold a hearing on the Natural Gas Act on Wednesday February 5, 2020.  Included in the hearing will be discussion on H.R.5454 – Fairness for Landowners Facing Eminent Domain Act. The hearing is open to the public on Wednesday, February 5, at 10 am in room 2322 of the Rayburn House Office Building. The hearing is entitled, “Modernizing the Natural Gas Act to Ensure it Works for Everyone.”

The House Committee’s press release, with information on the hearing, is here.  Information for this hearing, including the Committee Memorandum, witness list, testimony and a live webcast will be posted here as they become available.

H.R.5454 – Fairness for Landowners Facing Eminent Domain Act that is being referenced in the hearing is here.

A press release from the Fairness for Landowners bill’s sponsor, NJ Representative Tom Malinowski, is here.

Ten Reasons to Oppose the ACP

Here are 10 reasons why Friends of Nelson opposes the Atlantic Coast Pipeline. In the coming weeks we will be posting expanded information on each of the 10 reasons. We hope this information will help clarify your thinking and help you to explain to family, friends, neighbors, and legislators why you oppose the ACP. (Click here to download a printable version of the list.)

1. No Demand or Need
With evidence of reduced future demand and with recent upgrades to existing pipelines, energy analysts argue that there is no need domestically for the Atlantic Coast Pipeline. Additionally, foreign demand for this gas is better satisfied by nearer sources which can be produced and delivered at a lower cost.

2. Climate Change Implications
Gas pipelines leak methane gas and their compressor and metering stations regularly release methane and other harmful pollutants. The ACP will therefore significantly contribute to climate change.

3. Cost Burden on Ratepayers
The pipeline’s almost $8 billion construction cost will eventually mean rate increases for all Dominion customers as they will have to foot a large part of the ACP cost, regardless of whether it is put into service or not.

4. Discourages Utility Investment in Alternatives
The ACP’s possible construction and its huge capital investment cost will discourage utilities from promoting and developing non-fossil fuel, increasingly cost-effective alternatives such as wind and solar.

5. Eminent Domain Seizures of Private Property
Through the imposition of Eminent Domain, the proposed route confiscates and restricts Nelson landowners’ property rights, lowering their own and adjoining neighbors’ property values.

6. Landslide Danger on Steep Slopes
The proposed construction and placement of the pipeline endangers Nelson citizens’ lives and property, especially on steep slopes which are highly susceptible to landslide failures. Note that ruptured pipelines are likely to explode.

7. Disproportionate Harm to Minority Communities
The ACP will specifically harm the historic African American community of Union Hill by locating a dangerous and polluting compressor station in its midst.

8. Containment Failures Impact on Streams and Drinking Water
As recently demonstrated with the Mountain Valley Pipeline, construction of the ACP will, despite promised containment safeguards, silt up mountain and valley streams, affecting local drinking water and aquatic life.

9. Forest Fragmentation and Effects on Endangered Species
The ACP’s construction will further fragment our vulnerable eastern forests, reducing the habitat and population of Federally-listed endangered species. Such activity could potentially cause their extinction.

10. Detracts from Scenic Views on Public Lands
The pipeline corridor will detract from scenic views on the Blue Ridge Parkway, the Appalachian Trail and National Forest Lands. One of the most prominent viewing locations is at the Parkway’s Raven’s Roost overlook.

Virginia Landowners File Constitutional Case Against FERC

Two press statements on January 3, 2020, one from Protect Our Water, Heritage Rights (POWHR) and the other from Gentry Locke attorneys, announced the filing by landowners of a constitutional challenge against FERC and Mountain Valley Pipeline under the federal non-delegation doctrine.

The POWHR statement says in part, “Plaintiffs have brought a facial constitutional challenge under three counts, alleging that any and all certificates already issued under the Natural Gas Act are void. Plaintiffs are seeking a declaratory judgment from the U.S. District Court in Washington, D.C., asking the Court to declare that Congress’s overly broad delegation of legislative powers to FERC was and is facially unconstitutional; that any delegation of eminent domain power to any and all private actors, including MVP, is facially unconstitutional; that FERC has no authority to issue certificates to applicants seeking to invoke the power of eminent domain to take property; and that all such certificates already issued are void ab initio.”

The Gentry Locke statement says, “The case centers around three constitutional principles involving delegations of Congressional power: 1. A broad delegation of power is unconstitutional; 2. Delegating delegated power is unconstitutional; 3. Delegating legislative power to a private entity is unconstitutional.”

The Gentry Locke statement continues:

“The Complaint is a facial constitutional challenge, which raises three Counts.

  • Count I is about an overly broad delegation of power by Congress to FERC. When it enacted the Natural Gas Act, Congress delegated to FERC the legislative power to decide who can exercise eminent domain without providing FERC with a test to use when making its decisions. Instead, Congress told FERC to make its own test. In doing so, Congress violated the non-delegation doctrine.
  • Counts II and III both involve delegations of eminent domain power to a private entity. Count II is premised on the idea that the power went from Congress to FERC and then to the private entity. This violates the prohibition on the sub-delegation of powers.
  • Alternatively, Count III is premised on a direct delegation from Congress to the private entity. Because eminent domain power is legislative in nature, it cannot be delegated directly to a private entity. This violates the private non-delegation doctrine. The private non-delegation doctrine says that Congress cannot delegate legislative power to a private entity. (“When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with ‘legislative Powers.’ Art. I, §1.”) (Alito, J., concurring).

As a result, Plaintiffs are seeking a declaratory judgment declaring that FERC has no authority to issue certificates and that all such certificates already issued are void.”

Russell Chisolm, Co-Chair of Protect Our Water, Heritage, Rights, commented, “We are encouraged that landowners may have a real opportunity for judicial consideration of their claims challenging the constitutionality of delegating Congressional powers to separate entities. The process as it stands has allowed FERC and private corporations to use the extraordinary power of eminent domain to seize property by force from landowners—a process that has continued even in the face of a multitude of missing permits, several pending lawsuits, and the absence of true public need for the Mountain Valley Pipeline.”

See Roanoke Times coverage of the filing here.

Video: North Carolinians battle the $7.5 billion Atlantic Coast Pipeline


A wonderful new video from independent news outlet Grist.   Eastern North Carolina is home to the environmental justice movement – and also to some of the state’s biggest threats to human and environmental health, the latest being the Atlantic Coast Pipeline. The documentary was published in partnership with Southerly, a nonprofit media organization that covers ecology, justice, and culture in the American South.

Grist also published the December 3, 2019 article looking at the entire route of the 600-mile proposed pipeline: A Pipeline Runs Through It.

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.