Eminent Domain

As the number of for-profit pipelines grows, so do the battles over eminent domain. This page includes information about eminent domain specific to the proposed Atlantic Coast Pipeline (ACP) and to Virginia, as well as some more general information that will be useful in our fight if Dominion receives permission to proceed with construction. Dominion cannot take any property by eminent domain for the ACP before the Federal Energy Regulatory Commission (FERC) issues a permit for construction of the ACP. The application, comment, and review process is still ongoing, and no permit has been issued by FERC yet.

A 2012 amendment to the Virginia Constitution restricted eminent domain. Unfortunately federal law trumps state law so it is still up to the FERC to determine “public need and convenience” at the federal level.

Here is a link to a FAQ from law firm Waldo & Lyle about eminent domain.

Friends of Nelson still believes that, given our goal of fighting against the ACP, it is in our collective interest to continue to refuse to grant Dominion permission to survey our lands and to refuse any attempts by Dominion to negotiate easements for use of our lands. Resistance on the part of landowners indicates to Dominion and to the courts that any taking of our land by Dominion for the ACP is against our will. Thus, they would have to use eminent domain to take land, and compensation would be decided in court.

That said, WE CANNOT GIVE LEGAL ADVICE. There may be reasons why it makes sense for an individual landowner to consent to survey, so we strongly encourage you to seek your own legal counsel.

Here are several eminent domain or environmental attorneys currently engaged by local landowners:

If you hire an eminent domain lawyer:

  • You don’t have to pay anything up front
  • If it never comes to eminent domain, you will never pay them
  • All of them charge a similar percentage of an eventual settlement (33% above Dominion’s first written offer), so you never need to pay them out of pocket

While we sincerely hope that none of us will ever need an eminent domain attorney, engaging one early is a good strategy. First, if you are sued for access, they will defend you. Similarly, they are there for your legal questions. Second, engaging an eminent domain attorney early can send a clear signal that you are not interested in negotiating and Dominion will have to forcefully take your property with compensation decided by a judge. Sending this signal is important, because Dominion and the Federal Energy Regulatory Commission, which decides whether or not to allow eminent domain, like to pretend that eminent domain is very rare. They assume that negotiating means the landowner feels that the pipeline is in their best interest, ignoring the fact that the landowner knows that if they don’t negotiate, Dominion will get their property anyway. We need to help bring this injustice to light, and engaging an eminent domain attorney early helps to do that. Finally, while we hope it never comes to this, a lawyer is essential to ensure that any eventual right of way (ROW) agreement protects your interests. Dominion will try to have the agreement specify their right to put multiple pipelines in the ROW and different substances in the pipelines, greater ROW widths, etc.

HERE ARE SOME RESOURCES FOR ADDITIONAL BACKGROUND

Organizers of the national Pipeline and Eminent Domain Strategy Session, held in Atlanta GA, June 13-15, 2016, sent these links to participants for background reading:

Two recent articles, mentioned in one or more of the three articles above:

Additional resources:

For-Profit Pipelines Are Growing And So Are Eminent Domain Battles. (ThinkProgress.org, June 6, 2016). No governmental agency gathers data on eminent domain permits given to corporations, but experts said a new wave of pipeline investment is pitting landowners against corporations and regulators in growing numbers, and the trend will likely continue. “The conventional wisdom is that we are having more [eminent domain controversies] in recent years because of the oil and natural gas boom,” Ilya Somin, professor at the George Mason University School of Law, told ThinkProgress. With that growing tension in hand, regulators, lawmakers, and courts in various states are being pushed to probe eminent domain requests for pipeline build out like never before; in some cases, like in South Carolina, bans are being approved.

Ilya Somin, quoted in the above article, has written a book on eminent domain, The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain (University of Chicago Press, 2105).

Recent Rulings of Interest

10-12-2016 The Blade [Toledo OH]:  Wood County [Ohio] judge nixes pipeline builder’s eminent domain plans.  “A Wood County Common Pleas judge ruled today that the company behind the Utopia East pipeline project does not have eminent domain rights, throwing a potentially expensive roadblock into the project’s path.  “Judge Robert Pollex ruled that Kinder Morgan’s plan to pipe ethane from the Utica shale region in eastern Ohio to a chemical company in Windsor, Ont., is not necessary and not for a public use, and thus the company cannot use eminent domain to force Wood County landowners to give easements on their property.”

10-18-2016 Inside Climate News:  Pennsylvania Ruling on Eminent Domain Puts Contentious Pipeline Project on Alert.  “The Pennsylvania Supreme Court has unanimously ruled unconstitutional a section of state law that lets companies seize private land for certain natural gas projects, with potentially major implications for one of the biggest proposed pipelines in the state.   Under the original rule, passed in 2012, any company has the authority to take private land through eminent domain for the purpose of storing natural gas underground.  The justices unanimously decided on Sept. 28 that this section of the law unconstitutionally lets private companies profit from taking people’s land with no direct or obvious benefit to Pennsylvanians. The oil and gas companies argued the projects could benefit the state by creating new jobs, for example, but the justices were not convinced.”

Older Articles Containing Useful Information

Negotiate or Not?  Lancaster PA folks fighting WIlliams’ Atlantic Sunrise Pipeline have done a stellar job with this web page on eminent domain.  It lays out clearly why refusing to negotiate is a critical strategy to fight pipelines.  The page says, “A landowner’s decision to negotiate a right-of-way agreement with Williams or to instead require Williams to use eminent domain to acquire the right-of-way is their most influential input to the FERC review process.”  One of the most insidious and pervasive lies pipeline companies broadcast is that landowners WANT the pipelines because they AGREE to a settlement.  If landowners settle, pipeline companies then assume (and advertise!) that those landowners support the pipeline. The obvious fact that the true choice landowners are faced with is to settle and lose their property and rights to it or to go to court and lose their property and rights to it is conveniently overlooked.

12-14-14 The Recorder [Greenfield MA]: Deerfield may seek pipeline royalties. Local Massachusetts government officials are stepping forward to seek more just compensation for landowners whose property is taken under eminent domain, since properties through which pipelines pass suffer great losses, but are not adequately compensated for eminent domain takings. Royalty payments would be required for all natural gas leaving the state. This might encourage these corporations to use existing easements for transmission across state lines, and would help alleviate the burden placed on these landowners.

12-14-14 Virginia Pilot [Hampton Roads]: Property rights outweigh pipelines. “Three natural gas pipelines proposed to pass through Virginia are being hailed as economic boons, bringing thousands of jobs and luring manufacturers to the commonwealth…. Few want to talk about what is likely to accompany them: the largest exercise of condemnation power in the commonwealth in decades, all without the constitutional protections Virginians ensured for property owners in 2012.” “Virginia’s legislators, who have championed property rights and pushed for their inclusion in the state constitution, must step in.” We agree our state legislators should step in and protect the rights of private landowners. Will they? Write and urge them to do so!

12-12-14 Staunton News Leader: Eminent domain: Easy for you to say. “Do you think you own your home because you bought the land, built the house and paid taxes on them both? So did 200 of your neighbors in Augusta County [and about 170 of your neighbors in Nelson County], until Dominion Transmission announced it will take their land for the Atlantic Coast Pipeline (ACP) using eminent domain.” Read this excellent column to find out more about eminent domain and its costs.

This site has a lot of good info on eminent domain, posted December 5, 2014. From an article on the proposed Constitution Pipeline, in NY: “And they send these threatening letters as if condemnation is something a landowner does not want. When it is exactly what the landowner should want: force the gasholes to condemn the property, since that is the most expensive way for the pipeline company to get ROW. The corollary of which is that forcing a condemnation is how the landowner gets the most money for their land. Having a pipeline is going to trash your land. Make the frackers pay. Once your property is in their ROW, the goal of their landmen is to buy you out as cheaply as possible (watch Promised Land). Which means that your goal, as a landowner is make them pay dearly for your land. Or force them to go somewhere else. Like hades. Or drop dead (financially speaking) when the acquisition cost of the pipeline ROW goes too high.”

11-9-14 Roanoke Times: Landowner rights vs. public need in battle over pipeline route. “Possible arguments [for landowners] could include that the construction would be an unlawful condemnation by a private energy company for the benefit of private parties [company profits]”

10-3-14 Nashoba [MA] Publishing: Eminent domain and closed-door decisions. “Granting a private, for-profit company this type of power over the property rights of so many organizations and individuals is a matter of grave concern and one that demands intense scrutiny from officials at all levels of government.”

9-29-14 Lancaster [PA] Online: Pipeline company makes offers, up to $65,000, to property owners along proposed route. This story about a different pipeline in Pa. makes some very important points – refuse survey and refuse to negotiate. Why do pipeline companies make offers before the project is approved? “Early property acquisition basically locks in the company’s preferred route,” [Carloyn Elefant, a former FERC attorney who now represents citizens groups] said, “and forecloses meaningful consideration of alternatives as required by National Environmental Policy Act … One of the criteria that FERC evaluates in determining whether to approve a project is impact to landowners. If landowners voluntarily agree to a negotiated easement, FERC will find that they are not adversely impacted. [emphasis added] In addition, by getting landowners to commit to a route up front, the pipeline guarantees that its preferred route will be approved. So for example, if pipeline can acquire negotiated easements for all properties along pipeline Milepost 1- 2, and other owners between MP 2 and 2.5 argue for the pipeline to be moved a mile north or south, the pipeline company will say – we can’t do that – the move will adversely impact other owners and we already have the property rights for this route.”

9-9-14 Western District of Virginia Law Blog: New Eminent Domain Law May Require Business-Litigation Approach To Condemnation Cases. Mark Obenshain is quoted as saying: “Property owners seeking remedies under the new legislation may petition the state for up to three years’ worth of future profits” which could be based on lost profits. Previously Virginia’s condemnation proceedings measured damage by means of real estate valuations, rather than allowing for recovery of lost profits.

Important Victory for Texas Landowners in Eminent Domain Case.  A 4-20-2014 posting on the Texas Agriculture Law Blog from Texas A&M discusses a Texas ruling that awarded compensation to a landowner for the actual value of the easement sought for a gas pipeline, but also for “remainder damages,” the adverse monetary impact of the easement on the remaining land.

On 3-25-2014, a judge in Kentucky ruled that Bluegrass pipeline companies don’t have power of eminent domain.  WFPL News (Louisville KY) reports on the ruling.  Another report:  3-25-14 Lexington (KY) Herald: Judge: Bluegrass Pipeline developers can’t use eminent domain. “Bluegrass Pipeline Co. cannot use eminent domain to take private property for construction of a natural gas liquids pipeline through Kentucky.”  The judge “held that the power of eminent domain is “an essential attribute of a sovereign government” that cannot be delegated to a private company such as Bluegrass Pipeline “without a clear legislative mandate that such a delegation is in the public interest.”

3-24-2014 Yahoo! Finance:  Texas Landowners Win $2.1 Million Judgment Against Pipeline Company Over Lower Property Value. Case marks third landowner victory in pipeline easement disputes. “This verdict sends a strong message that pipeline easements often cause significant damages to property beyond the easement area.” In Virginia, we have a constitutional right to seek just compensation for property damages beyond the easement area.