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Landowners challenge pipeline developer, saying taking property is unconstitutional

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Attorneys contend federal regulators have ‘run wild’ in granting eminent domain.

Segments of assembled pipe are lined up along a cleared section of woods on July 8, 2017, where a natural gas pipeline is under construction in Butler County, Pennsylvania. CREDIT: AP Photo/Keith Srakocic

Virginia and West Virginia residents opposed to the Mountain Valley Pipeline asked a court in Roanoke, Virginia, to block federal regulators from allowing the pipeline’s developers to confiscate private property to build the 303-mile natural gas pipeline.

In a lawsuit filed Thursday in the U.S. District Court for the Western District of Virginia, the residents challenge the authority of the Federal Energy Regulatory Commission to allow a private company like Mountain Valley Pipeline, LLC, to confiscate property through eminent domain to build such a project. The residents also are seeking a preliminary injunction so that — even if the FERC grants the company final permission to build the pipeline — the company would not be allowed to use eminent domain until this suit is decided.

“Today marks an important day not only for landowners in the path of the Mountain Valley Pipeline but for all Americans, for every citizen in Virginia, West Virginia, and across the United States that values our constitutional right to be secure in our property,” Justin Lugar, an attorney for the law firm Gentry Locke, which filed the case, said in a statement.

The plaintiffs contend that granting Mountain Valley Pipeline the authority to use eminent domain would violate the Fifth Amendment of the Constitution, which requires that private property may only be taken “for public use” and that “just compensation” must be paid.

“The case before the court, in its simplest form, is a constitutional challenge to the eminent domain provisions of the Natural Gas Act … and the resulting unconstitutional acts of FERC and ultimately MVP,” the plaintiffs’ lawyers state in the lawsuit. The Natural Gas Act, passed in 1938, allows the federal government to regulate the interstate transportation and sale of natural gas.

All of the the plaintiffs in this case are landowners within the path of Mountain Valley’s proposed 42-inch-diameter natural gas pipeline that will extend from Summers County, West Virginia to Franklin County, Virginia. The landowners want to “protect their constitutional rights to secure their private property from a government-sanctioned land grab for private pecuniary gain,” the lawsuit says.

A ruling in favor of the plaintiffs could reverberate across the nation, causing pipeline projects to get stalled and throwing FERC’s pipeline approval process into turmoil.

“We are aware of the complaint and will, of course, review. As this is pending litigation; however, we are unable to provide additional information at this time,” Mountain Valley Pipeline spokesperson Natalie Cox said in an email.

A FERC spokesperson said the agency does not comment on pending litigation.

Virginia landowners, environmentalists urge divestment to stop proposed natural gas pipeline

FERC issued a final environmental analysis in June that concluded the $3.5-billion pipeline project “would result in limited adverse environmental impacts.” The release of the final environmental review triggered a 90-day federal authorization decision deadline.

In response to the final environmental analysis, Bold Alliance, an anti-pipeline group, said Mountain Valley Pipeline failed to demonstrate a genuine market need for its project. “The Mountain Valley Pipeline company expects to invoke the power of eminent domain for their private gain based on FERC’s permit, yet FERC is failing to perform the assessment of convenience and necessity it is mandated to do,” Carolyn Reilly, a Bold Alliance organizer and landowner who will be affected by the pipeline, said in a statement.

Oil Change International, an anti-fossil fuel research and advocacy group, released a report earlier this year that found the annual greenhouse gas emission caused by the Mountain Valley Pipeline would be almost 90 million metric tons, equivalent to the emissions from 26 average U.S. coal plants or over 19 million passenger vehicles.

The pipeline project will be constructed and owned by Mountain Valley Pipeline LLC, a joint venture between EQT Midstream Partners LP, NextEra US Gas Assets LLC, Con Edison Transmission Inc., WGL Midstream, and RGC Midstream, LLC. EQT Midstream Partners will operate the pipeline and own a significant interest in the joint venture.

According to the lawsuit, Congress delegated the power of eminent domain to FERC’s predecessor agency, the Federal Power Commission, to condemn properties for the construction and operation of interstate gas pipelines. However, Congress failed to set any standard for the use of eminent domain, “rendering its delegation of power overly broad and unconstitutional,” the lawsuit says.

Virginia residents vow to fight on after controversial pipeline gets favorable review

Eminent domain is the right of a government to expropriate private property for public use, usually with payment of compensation. In almost all cases, FERC has granted companies the right to use eminent domain to build their natural gas pipelines.

In the lawsuit, the residents’ lawyers state Congress failed to set parameters for the use of eminent domain and ever since federal regulators have “run wild” and have “unconstitutionally subdelegated the power of eminent domain to private parties seeking private profits.”

FERC has largely relied on whether companies have demonstrated an intent to use the proposed pipeline to determine whether a pipeline is in the public interest. The agency does not seek to determine whether the residents who live along the pipeline or elsewhere in the region where the pipeline is located with benefit from its construction.

To date, the only companies that have announced they would use the pipeline are affiliated with the pipeline’s developers. In its final environmental review of the project, FERC failed to acknowledge the fact that 100 percent of the commitments to use the pipeline are by owner-affiliates of the pipeline, according to the lawsuit.

“A private market need for a private natural gas company to ship its affiliate-owned fracked natural gas to market, domestic or otherwise, does not equate to a public benefit, much less a public purpose or public use,” the lawsuit says.


Landowners challenge pipeline developer, saying taking property is unconstitutional was originally published in ThinkProgress on Medium, where people are continuing the conversation by highlighting and responding to this story.

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