Category Archives: Property rights

FERC Provides “Additional Landowner Protections”

In a news release on June 9, 2020, the Federal Energy Regulatory Committee announced an amendment to its regulations which says that even if a project has all other certifications and permissions to begin construction, it must wait to do so until the Commission either acts on the rehearing request or the 30-day time limit passes with no requests for rehearing.

When FERC issues a certificate of public convenience and necessity, allowing a project to proceed, affected landowners have the right to ask FERC to reconsider. Although FERC is supposed to respond to such requests within 30 days, it frequently issues a “tolling order,” which indefinitely extends FERC’s deadline to respond. FERC thus freezes the landowner’s request for a hearing while allowing pipeline companies to continue construction – meaning that by the time a landowner has a hearing the pipeline construction may be completed.

According to FERC Chair Neil Chatterjee, quoted in the press release, “‘The Commission has undertaken a number of initiatives to improve affected landowners’ access to a fair and transparent process and today’s effort is another important step forward,’ Chatterjee said. ‘These are complex issues, with a diverse array of stakeholder input, but I remain firmly committed to doing what we can to make the FERC process as fair, open, and transparent as possible for all those affected while the Commission thoroughly considers all issues.'”

However, FERC did not define what it meant by “begin construction,” and could still allow pipeline companies to condemn property before FERC makes a decision on a landowners appeal, and, depending on the definition of “begin construction,” go forward to cut down all the trees, dig the trench for the pipeline, spray herbicides, cross waterbodies – everything but actually put the pipe in the ground.

FERC has been under mounting pressure from landowner rights advocates and from Congress to address inequities in its hearing process for affected property owners.

Read FERC’s press release here.

Read press coverage in E&E Energywire here and in Utility Dive here.

Riggleman Opposes ACP


Keep voicing your opinions! In a March 30, 2020 email reply, sent from the office of Representative Denver Riggleman to a constituent, he writes,

“Thank you for reaching out to my office regarding the Atlantic Coast Pipeline. It is an honor to represent the people of Virginia’s Fifth Congressional District, and I appreciate the opportunity to learn your thoughts on this issue. As an avid outdoorsman, and landowner of an area within proposed pipeline construction, this issue is of top concern to me.

“The Atlantic Coast Pipeline is a natural gas pipeline intended to provide energy and heating to thousands of residents in the lower part of the 5th District all the way into North Carolina. While the pipeline would provide many benefits to the district, it would also cross hundreds of miles of private property and National Park land. Personal property must be adequately compensated under eminent domain, and only enacted when necessary. I also do not believe the concerns of private citizens have been adequately addressed during the construction process, especially concerns relating to imminent [sic] domain and quick takes. For these reasons, I do not believe the increased energy provided by this pipeline would outweigh the numerous property rights issues it would cause.

“I hope that you and other Virginians will continue to share with me on these important issues as citizen participation is vital for a transparent and functional government. Thank you for your dedication to preserving this nation’s representative institutions….”

Sincerely,
Denver Riggleman
Member of Congress

Video: This Land Is My Land


A year ago Sebastian Mlynarski and two others from NY came and interviewed property rights activists and Atlantic Coast Pipeline opponents — Richard Averitt, the Limberts and Union Hill residents among others — about the injustice to landowners on the route of the proposed Atlantic Coast Pipeline.

Click here for the 6 minute video, This Land Is My Land, directed by Sebastian Mlynarski and Rachel Fleit, who hope to produce a feature-length documentary.

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.

Virginia’s History of Displacemment


An article in the Washington Post on October 11, 2019, asks, Will Virginians be able to resist the Atlantic Coast Pipeline? It points out that backers of the ACP see the Supreme Court’s consideration of the ACP’s effort to cross the Appalachian Trail as one of getting government regulations out of the way of a private industry (supposedly) operating for the public good.

“But for people in central Virginia, the push for a pipeline is a story of government interference, part of a century of struggle between government authorities and vulnerable populations that have been displaced from the land. …. Urban and rural communities alike have their own collective memories of the encroachment of government-backed industry. Those memories are reflected in the diverse coalition that has come together to fight the pipeline.”

The article describes how “One of the largest land seizures in the history of the state took place in the same forest that Dominion now contests” when Virginia, in the late 1920s and early 1930s, used eminent domain to acquire 190,000 acres in the rural Blue Ridge Mountains, seizing or condemning the homes and farms of about 465 families, removing 2,000 people from land they had tended for generations. Virginia then donated the land to the federal government for Shenandoah National Park.

In 1964, under the guise of “slum-cleansing,” the city of Charlottesville razed Vinegar Hill, home to a thriving community of African American residents and black-owned businesses, Charlottesville’s center of black economic life and culture. The city destroyed 29 businesses and forced 500 residents into public housing – and then for 20 years the land sat unused.

And now in rural Buckingham County, the ACP’s compressor station threatens Union Hill, a historically black community. Residents there have spoken out against the pipeline – as have residents in Nelson County whose planned and established businesses would also be destroyed by the ACP.

The unusual coalition fighting the pipeline reveals “a surprising alignment of interests across traditional social, racial, economic and political boundaries. In Buckingham, Va., Baptists and yogis have joined to fight the pipeline. That unusual coalition is up against powerful forces: the Trump administration, a big energy company and a Supreme Court dominated by conservative justices. But for more than a century, the people of central Virginia have been battling the government over their right to control their land, farms, parks and city neighborhoods. Whatever happens in the Supreme Court this term, they’ll keep fighting.”