Category Archives: Landowners

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.

Filing to FERC on New Landslide Information

In their “Motion to Intervene (Out of Time) in Docket No CP15-554 Atlantic Coast Pipeline – Request to review new information and to issue a stop work order,” filed recently with the Federal Energy Regulatory Committee, Richard and Jill Averitt and other family members ask FERC to review the LIDAR work done by Dr. Anne Witt of the Virginia Department of Mines, Minerals and Energy. They call attention specifically to the slopes near their home that are part of the Atlantic Coast Pipeline path, and the disturbing results of an overlay of LIDAR data with the ACP route.

Read the Motion to Intervene here.

Read more about Dr. Witt’s LIDAR work and the heightened potential for landslides along the ACP route here and here.

Catalog of Disasters

In an article published July 17, 2019, DC Media Group reports on the catalog of disasters inflicted by the Mountain Valley Pipeline on the LaFerriere family and their Blackberry Springs Farm in West Virginia. In September 2018, despite cease and desist orders, the organic farm was showered repeatedly with pellets of Earth Guard Edge dropped from helicopters. The pellets are an erosion control product containing acrylamide, a carcinogen. LaFerriere, his wife and children, and an intern were all struck by the pellets while harvesting ginseng a quarter mile from the MVP right of way, with resulting contusions and lacerations. Specialists said nothing could be done to mitigate the damage, since once the pellet gets wet, it gets into the soil.  The organic status of the farm has been jeopardized.

“MVP is required to adhere to an Organic Management Plan it filed with FERC, but LaFerriere said they still hadn’t provided him with any information with regard to its implementation. He claims he hasn’t been allowed to speak with the expert from the International Organic Inspectors Association hired by MVP–who has been out to the property twice–and he still hasn’t received a complete list of materials that MVP would be using on the farm. MVP also wouldn’t tell him much about the pale green coating on the 42″ diameter pipeline. His concern about the coating degrading and contaminating the soil and water is shared by FERC, which last week sent a letter to MVP asking about its safety after two years of sitting in the sun.”

Last year, LaFerriere asked for 72 hours notice before MVP cut trees in the right-of-way so he could move some materials. They failed to give notice, and felled trees on the materials, ruining them. MVP had to pay to replace them.

MVP maintains they have “retained an organic consultant to train workers and environmental inspectors and monitor construction activities and remediation. LaFerriere said that no monitors or inspectors have been introduced to them, and he has not seen anyone on site that he can identify as a organically trained monitor.”

Because Laferriere believed MVP wasn’t honoring its organic management plan requirements, he sent yet another cease and desist order; MVP representatives agreed to meet with him, but cancelled at the last minute.

On July 16, only an hour after the scheduled (ten cancelled) meeting meant to discuss the Laferriere’s concerns over MVP’s failure to adhere to the organic management plan requirements, “an excavator operating on the right-of-way tipped over onto its side. The excavator was on relatively flat terrain, not on a steep hill or slope, LaFerriere said. Fluids spilled out, and nearly 20 workers were required to bag soil that was contaminated. He didn’t observe any barrier or protective silt socks put in place to contain the spill. The driver was able to exit the excavator and walk away with the assistance of co-workers.”

The article notes that, “Problems with MVP construction have not been limited to Blackberry Springs Farm. MVP was cited with more than 300 violations by the end of 2018 alone. As a consequence, many of the pipeline’s permits have been revoked. FERC has approved 125 requests by MVP to deviate from its original work plan, and most appear to be related to efforts correct erosion events.”

Also in recent days, MVP construction materials in Virginia were swept down the Blackwater River by heavy rains, ending up in Smith Mountain Lake, where they are a safety hazard, particularly for boaters. Because of its many violations in Virginia, attorney general Mark Herring filed a civil lawsuit against MVP in October 2018. But because he refuses to issue a stop work order, construction and the resulting devastation continues.

Read the full DC Media Group article here.

Related article in the July 15, 2019 Virginia Mercury, MVP’s violations show ‘complete absence of any and all meaningful regulation’

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.