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.
Category Archives: Easement Agreements
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.
ABRA Questions Virginia DEQ About Absence of Access Road Scrutiny
From the Allegheney-Blue Ridge Alliance’s ABRA Update #226 for April 18, 2019
ABRA has asked the Virginia Department of Environmental Quality (DEQ) why it has proclaimed that its review of the Atlantic Coast Pipeline (ACP) covered “every foot” of the project, when recently discovered evidence contradicts that. In an April 19 letter to DEQ Director David Paylor, ABRA Executive Director Lewis Freeman called attention to a recent controversy concerning a proposed 5-mile ACP access road in Bath County (see related Recorder newspaper articles in News You May have Missed, below). Freeman’s letter noted that DEQ staff had recently told ABRA that the agency “was not aware of the proposed road because it had not been submitted to your agency as part of the plans submitted by the Atlantic Coast Pipeline, LLC (ACP, LLC). However, the road in question was part of the plans submitted to the Federal Energy Regulatory Commission and approved as part of the certificate issued for the ACP.” Continuing, Freeman’s letter states:
DEQ informed the State Water Control Board during its consideration of approving a 401 certificate for the ACP that it had reviewed “every foot of land disturbance proposed by ACP related to pipeline construction” (see page 8 in DEQ’s 10/19/18 report to the Water Board). Why was this statement made to the Water Board when it was not true? Can you provide clarification?
The access road in question crosses an environmental easement held by the Virginia Outdoor Foundation (VOF) and was proposed by ACP, LLC and approved by the Federal Energy Regulatory Commission without consultation with VOF. VOF wrote FERC on April 9 taking strong exception to the situation.
WPOA Settles with ACP
Wintergreen Property Owners Association released this statement on December 19, 2018:
Following extensive negotiations, Wintergreen Property Owners (WPOA) and Dominion Energy have reached a financial settlement related to the condemnation of WPOA property for construction of the Atlantic Coast Pipeline (ACP). Terms of the settlement are confidential.
The WPOA, while understanding the principle of eminent domain, remains opposed to the chosen location of the Atlantic Coast Pipeline through its property. Like other landowners having property taken through eminent domain, WPOA had no good legal remedy to fight the condemnation of our land. While the settlement eliminates a costly protracted legal battle over condemnation, it leaves open other legal options to protect our community and allows our community an opportunity to move forward.
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