The U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday that the Virginia landowners cannot sue developers of the Mountain Valley Pipeline for taking their land through eminent domain.
A federal appeals court has again rejected a bid by Virginia landowners to challenge the construction of a natural gas pipeline.
The U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday that the Virginia landowners cannot sue developers of the Mountain Valley Pipeline for taking their land through eminent domain.
The same court had earlier rejected the landowners’ case, but the U.S. Supreme Court sent it back for further review.
The Federal Energy Regulatory Commission issued a siting certificate to the pipeline’s builders in 2017. It enabled them to use eminent domain to acquire property for the 303-mile pipeline.
The $7.2 billion project is over its original budget and past its scheduled completion. When finished in the coming months, it will transport as much as two billion cubic feet of gas a day.
Authorities have arrested a protester who strapped himself to construction equipment at a Mountain Valley Pipeline site in West Virginia.
News outlets report state police haven’t released details about the Monday arrest at the Lindside site. The man was strapped that morning to the equipment roughly 20 feet above the ground with a sign that said “No pipelines on stolen land.”
Authorities arrested him by late that afternoon. A group of protesters also gathered in a nearby parking lot with signs asking to stop the pipeline.
The Mountain Valley Pipeline is a 300-mile (483-kilometer) natural gas pipeline that is being constructed in West Virginia and Virginia and has used eminent domain to acquire project space.
Pipeline developers recently submitted an application to extend pipeline into North Carolina.
A group of landowners along the path of the Mountain Valley Pipeline in Virginia and West Virginia is asking the U.S. Supreme Court to hear an appeal in their eminent domain lawsuit against federal regulators and developers.
The plaintiffs filed a petition this week asking the high court to reverse a decision by the 4th U.S. Circuit Court of Appeals. That court over the summer affirmed the ruling of a lower-court judge who didn’t rule on the case’s constitutional issues but dismissed them, saying she lacked jurisdiction.
The landowners argue that taking their property for the 303-mile natural gas pipeline through eminent domain is an unconstitutional land grab.
It’s uncertain if the Supreme court will hear the case, although attorneys for the landowners are hopeful. The court agrees to hear oral arguments in only about 80 of the approximately 8,000 cases filed each year.
Work on the approximately $4.6 billion project is underway. Pipeline developers plan to have it operating by the end of next year.
A federal judge tells developers of the Mountain Valley Pipeline he won’t order all landowners in its West Virginia lawsuit to respond by Dec. 4 to motions for summary judgment for rights of way available under federal regulations.
The Charleston Gazette-Mail reports that U.S. District Judge John Copenhaver at a status conference Thursday said he wants the developers to locate landowners and serve them with court papers.
The pipeline would extend south for 195 miles (315 kilometers) from north-central West Virginia through 11 counties to the Virginia state line, and nearly 110 miles (175 kilometers) through six counties in Virginia.
Pipeline lawyers said in two federal suits that acquiring easements through condemnation is necessary as the developers have been unable to negotiate agreements with about 400 landowners.
All summer long, pipeline protesters have been camped along the Potomac River in Maryland and West Virginia. They don’t want to see a 3.5 mile long TransCanada natural gas pipeline built underneath the river. Supporters argue the line is critical to expanding natural gas resources to businesses and homes in the growing Eastern Panhandle.
Of the three outermost counties of the Eastern Panhandle, only Berkeley has access to natural gas as a utility source. That gas comes from West Virginia’s largest gas distribution company – Mountaineer Gas based in Charleston.
Mountaineer has over 220,000 customers throughout the state. It’s located in 49 of West Virginia’s 55 counties, and it maintains over 6,000 miles of distribution pipeline.
The company wants to expand distribution lines to Jefferson and Morgan counties. To do that, it’s relying on the completion of the TransCanada line in Maryland which would hook up to Mountaineer’s 22.5 miles of new line slated to begin construction in early 2018. The state’s Public Service Commission has already approved the first phase of the project.
But sections of that 22.5 mile pipeline will travel through private property – like this 600 acre farm owned by the Kesecker family in Berkeley Springs.
“It’s just very heartbreaking to know that you thought you owned something, and, you do until somebody else wants it, and they come in and they take it away from you,” said landowner Patricia Kesecker.
Kesecker and her husband raised their family in Berkeley Springs. Their children, grandchildren, and great-grandchildren all live nearby.
The Keseckers farm extensively and the property has been in the family for over 80 years. They also rent portions of land to about ten other people. For the past year the family has been very vocal about their disapproval of the Mountaineer Gas’ Eastern Panhandle Pipeline project.
In June, they were taken to court by Mountaineer Gas, and the Keseckers lost. Mountaineer obtained the right of eminent domain. This means the company is allowed on the Kesecker’s property without prior consent, but the company must compensate the family.
The Keseckers say, however, they don’t want money.
“I mean, we’re at the age, yeah, money would be nice, but it’s not nice to have to see our farm destroyed and it’s not worth it. There’s too much heritage, too much work that’s been done on this farm; blood, sweat, and tears.”
The family plans to appeal the court decision.
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
Kesecker in her pickup truck as she shows the land she and her husband have owned and farmed for decades.
Kesecker shows me the vast expanse of acreage from her pickup truck. She points to an 8 to 10 acre field slated to host the pipeline. She says if the line goes through her property, it’ll disrupt corn and hay farming operations. Her family and tenants are also concerned about possible explosions or gas leaks.
“Why should they have our property and use it to what they want to do, and we’re paying the taxes still on it, and the insurance on our farm is on it? If it blows up, we wouldn’t have enough money to put back what they destroy or whoever they might kill in the process if you go across it with a tractor or something,” Kesecker said.
The 10-inch, steel, low-pressure pipeline would be buried at least four feet underground. Mountaineer Gas would clear and maintain a 50-foot right of way.
Senior Vice President of Mountaineer Gas, Moses Skaff says it’s rare that his company has needed to use eminent domain to secure pipeline pathways. He says the case with the Keseckers was one of only two for the Eastern Panhandle Pipeline. Skaff says out of 146 land tracts, 138 have been secured through deals with landowners.
Skaff also points out that Mountaineer has been present in the Martinsburg area for over 50 years without any reported safety issues.
“We have a 24-hour monitoring system of all of our distribution lines that provide alerts to our corporate office here in Charleston, which is manned 24-hours,” Skaff noted, “We’re mandated by West Virginia Pipeline Safety to conduct surveys of all of our pipeline, meaning we actually walk pipelines to ensure the integrity of those pipelines.”
Skaff reports less than one significant incident a year occurs along their distribution system. He says his company also trains local emergency responders how to deal with incidents. He notes landowners near the pipeline also have the option to tap-in for access to natural gas.
John Reisenweber is the Executive Director of the Jefferson County Development Authority, and like residents of Morgan County, he doesn’t have access to natural gas. Reisenweber is a landowner, too, and says he understands concerns over eminent domain.
“If we didn’t at times use eminent domain, we wouldn’t get anything done,” Reisenweber said, “We wouldn’t be able to build roads, I mean, this route 9; go find somebody who’s doesn’t like route 9. Go find them. Well, they were here a few years ago, and some of that was eminent domain. But they are compensated for it. They may not like it, but you have to look at what’s in the greatest interest of the community at large, and we believe that this project is in the greatest interest of the community at large, cause we do believe it’ll be done safely, and we do believe it’ll allow us to grow the economy.”
Back at the Kesecker farm, the family is hopeful their appeal will be heard in court. They also hope the shorter TransCanada line is not built. They say if it isn’t, their property would be spared since the Eastern Panhandle Pipeline project would have to be reworked.
Mountaineer Gas says the TransCanada line is vital to the future of natural gas in the Eastern Panhandle.
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.
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.”
Credit Mountain Valley Pipeline, LLC
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The proposed route for the Mountain Valley Pipeline.
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.
“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.
