Friends of Nelson continues the fight to convince FERC to order Dominion to cancel all easements in Nelson County and elsewhere on the proposed path of the now abandoned Atlantic Coast Pipeline
Although Dominion has abandoned the Atlantic Coast Pipeline and will never build it, they stubbornly refuses to cancel the easements that it acquired to build the Pipeline. These easements were obtained by suing landowners, with the blessing of the Federal Energy Regulatory Commission (FERC or the Commission) or by threatening to sue them in Federal Court. Since the Pipeline was cancelled 14 months ago, there is no justification for Dominion to keep the easements. The easements held by Dominion are a serious, continuing and completely unwarranted burden on as many as 200 easements in Nelson County.
FERC then decided to produce a Supplemental Environmental Impact Statement (SEIS) to evaluate the Restoration Plan and assist the FERC Commissioners in deciding whether or not to issue an Order approving ACP’s plans. They opened a “scoping period” to formally solicit comments from stakeholders that would help FERC do its environmental analysis.
On July 23, 2021, FERC published published the Draft SEIS and basically said ‘not my department’ and they continue to duck the easement issue. Friends of Nelson refuses to allow FERC to sit on the sidelines.
In a summary of those comments, Friends of Nelson, argues that:
‘These comments present the Commission with a clear choice – that is, the Commission may act “in the public interest” and “for the public convenience and necessity” and order Atlantic to immediately release all easements that it obtained for the now-abandoned ACP if requested by the landowner. In so doing, the Commission will end the serious burdens on private land that are imposed by these easements, easements that were obtained by Atlantic by legal force or coercion when the Commission issued the certificate of public necessity and convenience for the ACP (the “Certificate”). Or, the Commission may act “in the private interest” and “for the private convenience and necessity” of Atlantic and permit Atlantic to retain the temporary and permanent easements for many years to come and to extract further financial or other concessions from the affected property owners even though the sole reason for the easements to exist, and the sole “public interest” justification for the easements – the construction of the ACP – no longer exists. We submit that it is the Commission’s responsibility to act solely “in the public interest” and “for the public convenience and necessity,” and to reject Atlantic’s attempts to retain the easements “in its private interest.”’
Lawyers at the Southern Environmental Law Center and the Niskanen Center also have submitted multiple comments on behalf of Friends of Nelson and others, pointing out that Dominion refuses to deal with the issue of restoring landowners’ property rights.
Friends of Nelson will continue to press FERC at every point to require Dominion to cancel the easements, and leave our neighbors alone to enjoy their land unfettered by Dominion’s heavy-handed restrictions.
It’s been just over a year since Dominion and its utility partners announced they were scrapping plans for a pipeline to carry natural gas from the fracking fields of West Virginia through Virginia to North Carolina. Opponents were thrilled, but the fight isn’t over yet.
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.
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. It is not sure as to how the valving system of the pipelines have been in place, or whether the Butterfly Valves of the pipeline are still intact to keep them from spilling.
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, 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.
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,”