Category Archives: Easement Agreements

Nelson County Administration and Board of Supervisors Submit Comments on FERC Docket# CP15-554-009

On April 14, 2021, the Board of Supervisors of Nelson County unanimously directed that a comment letter be filed with FERC to address the many “zombie” easements that afflict landowners in the County following the cancellation of the Atlantic Coast Pipeline.  In the comment letter, the Board stated that “we submit that it is the responsibility of FERC to require Atlantic Coast Pipeline, LLC to release the thousands of easements that were obtained by Atlantic from private landowners on the proposed path of the Atlantic Coast Pipeline,” including 250+ easements in Nelson County.  The Board added that “these easements impose a significant burden upon these landowners which has been proven to be unwarranted.  They significantly diminish and limit the owner’s use of their properties and, therefore reduce its value.”  Moreover, “it is inevitable that the county tax assessments on these properties will be reduced due the limitations that the easements put upon the landowner’s
properties, costing a loss of county tax revenue on these properties.

Signed Letter to FERC – April 14 2021

Oil and Gas companies are making old pipelines the landowner’s problem.

From Popular Science. In the US private residents end up footing the bill to prevent further eyesores and pollution. March 10, 202. 

There are some 3 million miles of natural gas pipelines buried in the US. More than half of all gas transmission lines in the country were installed before 1970, according to data from the Pipeline and Hazardous Material Safety Administration. Those pipelines have an average lifespan of 50 years. And it’s not just old pipelines that are set to go out of service. Younger pipelines are also at risk of falling into disuse as the power sector comes to rely less on natural gas in favor of wind, solar and batteries.


No clearer sign exists that that bridge has been crossed than the cancellation of several high profile natural gas pipeline projects in the last year, including the Atlantic Coast Pipeline and the Constitution Pipeline. What does that mean for the millions of miles of gas pipelines that are already in the ground?


The most comprehensive data on abandoned pipelines comes from Canada. In the 1980s, the Canadian government began an extensive study of abandoned pipelines, which identified a slew of serious risks to leaving them in place. Sinkholes could form as pipelines corroded and collapsed. Leftover fossil fuels, or the cleaning agents used to clear out lines, could leak out into the surrounding soil or water. Aging lines under lakes or rivers could carry water where it’s not wanted. Empty pipelines could also become slightly buoyant, relative to soil, and rise to the surface, where landscaping and signage marking a pipeline’s path is rarely maintained after it has been retired.


The Federal Energy Regulatory Commission (FERC) can order a pipeline company to remove a line that’s not in use, says Carolyn Elefant, an energy and eminent domain attorney, but it doesn’t always do so.


Pipeline companies have ample incentive to leave pipelines in the ground. Removal is expensive and requires heavy equipment, permits and environmental reviews. And pipelines laid before 1980 often have the added feature of an asbestos coating that must be dealt with. It can cost almost as much to get a pipeline out of the ground as it costs to put it in the ground.

Friends of Nelson Asks FERC to Order Release of “Zombie” Pipeline” Easements

Friends of Nelson, a non-profit organization originally formed to oppose the now-cancelled Atlantic Coast Pipeline has asked the Federal Energy Regulatory Commission to order Atlantic Coast Pipeline, LLC to release private landowners from the easements it obtained to cross their land.

Friends of Nelson cites statements by Atlantic that it does not intend to voluntarily release the easements, and has not ruled out transferring the easements to another party, saying only “it has no plans to do so at this time.” “These easements represent a severe, continuing, and — in the wake of the project’s cancellation — a totally unwarranted burden on the properties along the Pipeline’s 604-mile route,” the comment letter to FERC says, adding, “With no ‘public use’ justification remaining, FERC must ensure that landowners’ full property rights are re-stored.”

The comment letter says Atlantic and FERC bear joint responsibility for the “zombie easements,” so-called because the easements live on even though the pipeline proposal is officially dead. FERC bears responsibility because it awarded the essential certificate of “public convenience and necessity” that opened the door to Atlantic’s use of eminent domain. Faced with powerful corporations with huge financial and legal resources, most landowners felt forced to grant easements rather than take their chances in court. Atlantic is owned by Dominion Energy, Inc. and Duke Energy Corporation, two mega-corporations.

“By remaining in place even after the cancellation of the project, these easements burden landowners’ ability to use or sell their property—and also their peace of mind, due to the threat that Atlantic could someday transfer the easements to the developer of another project” the comment to FERC states.

Friends of Nelson has researched the more than 250 easements and easement modification agreements that were filed at the Nelson County Courthouse between October 2015 and July 2020. “The owner is prohibited from doing many things within the Permanent Easement,
including, but not limited to erecting structures such as a house or barn, planting
trees and moving earth. These prohibitions continue forever, even though the pipeline will never be built,” the Friends of Nelson letter to FERC says, and it cites specific examples of Nelson County landowners’ agreements that constrain the use of their land.

The Friends of Nelson’s letter to FERC asks the agency to order Atlantic to contact all owners along the pipeline’s entire 604-mile route to inform them that Atlantic will release the right-of-way easement within 90 days of a written request from an affected landowner.

Friends of Nelson also wants FERC to order Atlantic to provide landowners with a written release of the easement, pay reasonable attorneys’ fees the landowners incur in negotiating the release of the right-of-way, and file the release in the land records of the appropriate jurisdiction.

Friends of Nelson’s request was filed on March 3. A full copy of the letter can be viewed here. 

Reaffirming Property Rights Through Natural Gas Act Modernization Act

Last September, U.S. Senator Ron Wyden (D-OR) introduced S. 4673, “Reaffirming Property Rights Through The Natural Gas Act Modernization Act. 

This bill has a number of noteworthy provisions that provide needed protections for landowners  nationwide facing increased and unfair use of eminent domain for pipeline development. 

If you have not already reached out to your senators to encourage them to consider this bill, please do! The bill has been referred to the committee on Commerce, Science, and Transportation. The best way to keep the bill moving forward is to encourage a hearing!

Please reach out to your Senators today, particularly if they are members of the Commerce Committee. 

Provisions included in the bill are outlined below; 

  • Sec 2 -Establishes that there is No Presumption of Public Interest in the export of Natural Gas.
  • Sec. 4 Ensures Notice to Landowners occurs in a clear and uniform way, and that all impacted
    persons have the information needed to intervene in the process. 
  • Sec. 5 Lays out Requirements for Exercise of Eminent Domain, stipulating that pipeline
    companies obtain all other required state and federal approvals and permits before construction
    proceeds.
  • Sec. 6 is a Requirement to Execute Project Only for Certain Purposes – that is, according to
    the plans provided to FERC with its application. This prevents a bait-and-switch. 
  • Sec. 7 ensures that companies cannot “sit” on undeveloped confiscated land for more than one year without proceeding, or if a project does not go ahead as planned, this provision also ensures that property reverts back to the previous property owner. 
  • Sec. 8 Ensures that in the event eminent domain is exercised, property owners are more fairly compensated
  • Sec. 9 eliminates FERC’s historic practice of using “tolling orders,”

Easements

Two articles of interest to landowners with ACP easement agreements.

We remind our readers that the easements are not gone now that the ACP has been cancelled, and that under the law, landowners still do not have full use of their land. For example, unless ACP formally releases them from the easements, they are not allowed to build on it. And if they want to sell it, those restrictions carry with the land.

An August 15, 2020 article in the News and Advance, A look at the Atlantic Coast Pipeline easement process that left Nelson landowners $15 million richer, reports extensively on easement payments in Nelson County, including a chart by categories showing total amounts of compensation for easements signed by Nelson landowners. Note that the headline is deceptive, as more than half of the $15 million went to a very few landowners, and most received far less. Nor did this article take into account the 30% cut that lawyers got, or the thousands of dollars in other fees (like appraisers) that some landowners had to pay to be able to fight to get for the settlements they actually got, or the income taxes most of the landowners had to pay on this “windfall”.  

An August 15, 2020 article by Irene Leech, Landowners be advised, in the Friends of Buckingham newsletter suggesting landowners “may want to take any available opportunity to express the desire to have damage repaired and to regain easement ownership to political leaders and company representatives.” The Atlantic Coast Pipeline would have bisected Leech’s Buckingham County family farm for 1.1 mile and her home in Montgomery County, VA is within the evacuation zone of the Mountain Valley Pipeline.

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.