Pipeline Company Threatens Legal Action Against Survey Holdouts

Mar 8, 2015

Mountain Valley Pipeline LLC sent out letters threatening legal action against property owners who refused access to their land for surveying. Groups opposed to the pipeline believe there is no basis for legal action. The issue appears far from black and white.

Elise Keaton, with the Greenbrier River Watershed Association, talks about the proposed Mountain Valley Pipeline during a Feb. 28 meeting at the Ireland, W.Va., Community Building.
Credit Jesse Wright / West Virginia Public Broadcasting

The Mountain Valley Pipeline, or MVP, is a proposed 42-inch diameter, 330-mile line that would connect hydraulic fracturing operations in West Virginia to a transmission pipeline in Virginia. EQT and NextEra Energy are partnering on the project.

Elise Keaton is with the Greenbrier River Watershed Association, which is opposed to the Mountain Valley Pipeline’s construction. The association held a meeting on Feb. 28 in Ireland, Lewis County, to discuss the pipeline’s impact. About 70 people gathered at the town’s shamrock-themed community center. After the meeting, Keaton said her organization had received calls the previous day from landowners in four counties who had been mailed letters from the pipeline company. 

“So what we saw with these letters is a misinterpretation of the facts in our opinion.”

Keaton believes the crux of the issue is West Virginia’s eminent domain law and whether it can be applied during the surveying stage of the pipeline’s development.

“The letters imply that under West Virginia state code section 54-1-1, which is West Virginia’s eminent domain statute, that the gas companies have a right to come on and survey. As we read the statute, that doesn’t come into play until eminent domain is granted.”

The proposed route for the Mountain Valley Pipeline.
Credit Mountain Valley Pipeline, LLC

FERC's Role

Because the pipeline crosses state boundaries, the Federal Energy Regulatory Commission, or FERC, is overseeing its development. It’s FERC’s job to determine whether the pipeline’s benefits outweigh its adverse effects. If FERC decides the project should go ahead, a certificate of public convenience and necessity will be issued. The pipeline company can only ask a federal court to use eminent domain once that certificate is issued. 

But before any of that happens, the company has to submit a formal application to build the pipeline. According to its own timeline, MVP is planning to do that in October. If the application is approved, eminent domain likely wouldn’t be granted until sometime in 2016.

“So we feel as though they’re putting the cart ahead of the horse,” Keaton said.

Until a public convenience certificate is issued, FERC says state laws govern whether landowners can be forced to allow surveyors onto their property. But West Virginia’s laws on this issue aren’t very clear. We’ll have more on that in a minute.

A few landowners at the meeting said they don’t want pipeline surveyors on their land, but are very concerned about the threat of legal action.

Reaction to Survey Letters

Lawyer Joe Lovett, with Appalachian Mountain Advocates, is representing some landowners who have received the letters.

“It certainly is a threat. I mean it says, ‘If you don’t let us on, we’re going to sue you.’ I don’t know what could be more of a threat than that. I mean, that’s a clear threat.”

We reached out to MVP for specifics about the threat of legal action. EQT spokeswoman Natalie Cox declined an on-air interview and instead issued a statement on behalf of the Mountain Valley Pipeline company. 

Cox said MVP is trying to work with landowners to resolve their concerns, but legal action may be necessary to move the surveying forward. She didn’t offer any details about the company’s plans for legal action. Cox did, however, emphasize the importance of conducting the surveys. MVP says those surveys will determine the route that has the least overall impact on the environment, landowners, and cultural and historic resources.

Lovett, however, says it doesn’t matter how useful the surveys are to the MVP project, the letters still amount to bullying.

“MVP has to comply with the law. It just can’t come on and intimidate people and say, ‘Well you know, if you don’t let us on now, we’re not going to consider all those kinds of things that are good for you. I mean, this is your one chance buddy. You let us on your property or we’re going to screw you later.’ Is that really what the message from MVP [is]. I don’t think so. I think that better not be its message. Its message should be, ‘We’re here to work with landowners and comply with the law.’”

Third-Party Perspective

To help us put the survey issue in perspective, we spoke with West Virginia University associate professor Jesse Richardson. He’s a land-use lawyer who has experience with eminent domain. He says because West Virginia’s law is very old and there isn’t much legal precedent for these cases, it’s not a clear-cut issue.

“There’s a lot of grey area.”

Richardson says that all things considered, MVP could have grounds for legal action. He says it would be up to a circuit court judge whether the company has the right to survey without a landowner’s permission at this stage in the pipeline’s development. 

Back at the meeting, Keaton says it would be in the community’s interest to see how that legal action plays out. 

“I think we need to know where this line is and whether or not the state statute does in fact allow this without eminent domain or if they need to wait for the federal declaration of eminent domain.”

Keaton stressed that landowners never sign anything from a pipeline company without consulting a lawyer first.