On Thursday July 5, 2018, the Virginia Supreme Court delivered a 6-1 decision in Atlantic Coast Pipeline v. William Barr, et al, upholding, for the third time, a much-debated state law allowing natural gas companies to enter private property without landowner permission to survey possible routes for new pipelines. The case, brought by Barr and five other landowners in Nelson County, opposed the ACP’s use of the law to survey for the proposed pipeline route across their properties.
Writing for the majority, Justice Cleo E. Powell said the General Assembly clearly intended “to grant natural gas companies access to private property for the purpose of conducting certain activities related to the possible construction of a natural gas pipeline.” Justice Arthur Kelsey’s strong dissent challenged the 2004 law’s central premise, saying the ruling turns private property rights upside down. “It subordinates the ancient common-law rights of private property owners to the commercial interests of a pipeline company that is under no legal requirement to enter onto another’s land.”
Read the full Virginia Supreme Court opinion here. Judge Kelsey’s dissent begins at the bottom of page 17.
Press coverage of the ruling in the Charlottesville Daily Progress is here.
On Wednesday May 2, 2018, Doyle surveyors were observed on land specifically NOT permitted for survey access.
The petition for access is still in court and nothing has been granted. To access the property they also used roads marked “no ACP access” and where no permission has been granted. Doyle was approached and reported they were told by ACP that all permissions had been received. The surveyors were told that they had been misinformed and left the property. This occured in the Rockfish Valley. BE ON THE LOOKOUT!
Delegate Chris Hurst, Delegate Sam Rasoul, and Senator John Edwards held a joint press conference on January 11, 2018, to discuss legislation they’ve introduced to the 2018 Virginia General Assembly aimed at protecting water quality and landowner rights from the construction of fracked-gas pipelines, such as the proposed Mountain Valley and Atlantic Coast pipelines. The bills would require the Department of Environmental Quality to perform robust water permitting and impact review, and restrict the ability of pipeline companies to access private property,
The bills are (click on the links to see the full bill):
- HB 1187 (Curtails the ability of a natural gas company to enter upon real property for the purpose of conducting surveys and other tests for its proposed line or the location of facilities) and HB 1188 (Requires the operator of any natural gas pipeline of a certain size, prior to operation, to commission an independent test of the quality of ground water for each property in the right-of-way and to file a gas discharge contingency plan that is approved by the State Water Control Board (the Board), introduced by Delegate Chris Hurst)
- HB 1141 (Directs the State Water Control Board (the Board), regarding interstate natural gas pipeline projects, to (i) require both a Virginia Water Protection Permit and an Individual Water Quality Certification under § 401 of the federal Clean Water Act; (ii) review water body crossings, construction through karst terrain, and plans for control of erosion, sediment, and stormwater; (iii) prohibit any land-disturbing activity, including tree felling, prior to the issuance of a Water Quality Certification; and (iv) require horizontal directional drilling for certain crossings of large water bodies) and HB 1294 (Requires any company that plans to construct an interstate natural gas pipeline in Virginia to post a performance bond with the State Water Control Board (the Board) in an amount sufficient to ensure that the Board could address and remediate any adverse water quality impact that arises out of the construction) introduced by Delegate Sam Rasoul
- SB 324 (Curtails the ability of a natural gas company to enter upon real property for the purpose of conducting surveys and other tests for its proposed line or the location of facilities – a companion to HB 1187 above) introduced by Senator John Edwards.
At a hearing on September 11, 2017, Franklin County Circuit Court Judge William Alexander granted the injunction sought by Mountain Valley to prohibit interference with their surveying of Four Corners Farm in Franklin County. The family that owns and operates the farm, David and Betty Werner, their daughter, Carolyn Reilly, and her husband, Ian Reilly, have been repelling surveyors since May of 2016.
The judge said, “I think this whole statute is a legislative failure, frankly,” but that he felt compelled to enforce it.
Surveying will likely be over three days next week.
“The bottom line for me is that money talks,” Carolyn Reilly said. “It’s another win for money.”
Read the full Roanoke Times article about the hearing.
On August 22, 2017, the Virginia Supreme Court agreed without argument to hear on appeal the survey suit against Atlantic Coast Pipeline LLC brought on behalf of six Nelson residents by Lollar Law.
Chuck Lollar says, “We believe the Virginia Supreme Court granted our Petition for Appeal without oral argument from us (replying to the opponent’s brief in opposition) because they feel that a significant issue of first impression under Virginia law has been presented, which the full court needs to address. The survey statute has been directly challenged as authorizing an unconstitutional taking, along with its interpretation by the trial court reading ‘and’ as ‘or’. The granting of our petition without argument when less than 10% of cases argued have writs granted by the Virginia Supreme Court is very encouraging. The ultimate decision by the full Court on the unconstitutional taking issue presented by the survey statute will have a major impact upon Virginia private property rights, which the appeals in two recent Supreme Court opinions failed to address.”
Briefings will take place in autumn 2017, and the oral arguments before the full seven-justice court will take place in late 2017 or early 2018.
The Washington Post reported on July 13, 2017, that “The Supreme Court of Virginia ruled … on two cases related to the controversial Atlantic Coast Pipeline, handing opponents a minor victory but otherwise leaving the huge project unscathed. The court found in favor of a small group of landowners in Buckingham County who said pipeline surveyors had not provided adequate notice before entering their property. Survey crews have since changed their practice, though, to give more specific information about timing.
“The other case was potentially far more sweeping, as a landowner [Hazel Palmer] challenged whether an out-of-state utility has the right to enter property for surveys or to seize property under eminent domain. Although the natural gas pipeline project is largely controlled by Richmond-based Dominion Energy, the partnership that is building it is registered in Delaware.
“The court ruled that state law permits the survey work but said the plaintiffs had waited too late in the legal process to raise the issue of eminent domain, or property seizure. One expert said that could leave the door open for someone to pursue the eminent domain question, because the state constitution contains language prohibiting any outside company from exercising ‘the powers or functions of a public service enterprise.'”
Read the full article here.