Above Photo: travis blanston/flickr/cc
Dozens of landowners potentially affected by the Mountain Valley Pipeline or the Atlantic Coast Pipeline and other foes of the controversial projects have filed a federal lawsuit that challenges eminent domain provisions of the Natural Gas Act.
The suit contends that these provisions, as implemented by the Federal Energy Regulatory Commission, violate Fifth Amendment constitutional protections by allowing private, for-profit pipeline companies to wield eminent domain to acquire easements across private properties without evidence that the projects are needed or will serve the public good.
The lawsuit, filed Tuesday, contends that FERC’s approval of the pipelines “is virtually certain and imminent” and it asks the U.S. District Court for the District of Columbia to intervene. The plaintiffs and their attorney, Carolyn Elefant, a former FERC lawyer, implore the court to stop FERC from issuing the certificates of public convenience and necessity — which the pipeline companies need to begin construction or to exercise eminent domain — until the lawsuit can be litigated.
Defendants include the two pipeline companies, each a limited liability company incorporated in Delaware, as well as FERC and its three commissioners.
A few of the plaintiffs and Elefant gathered Wednesday morning outside the FERC building in Washington, D.C., for a news conference. The group included Carolyn and Ian Reilly, co-owners of a farm in Franklin County that is on the route of the Mountain Valley Pipeline. Carolyn Reilly works with Bold Alliance, which is also a plaintiff.
Tamara Young-Allen, a FERC spokeswoman, said the agency does not comment on court cases “or matters pending a commission decision.”
Other plaintiffs include Jerry and Jerolyn Deplazes, whose Giles County property would be affected by the Mountain Valley Pipeline.
Jerolyn Deplazes said there is no proven need for the project.
“This is a private company asking the government for other people’s land for profit,” Deplazes said. “This must not stand.”
Both the 303-mile, $3.5 billion Mountain Valley Pipeline and the 600-mile, $5.1 billion Atlantic Coast Pipeline would transport natural gas at high pressure. Each would bury a 42-inch diameter pipeline that would begin in West Virginia and travel into Virginia. The Atlantic Coast project would continue into North Carolina.
Aaron Ruby, a spokesman for Atlantic Coast, responded Wednesday to the lawsuit.
“First, the Atlantic Coast Pipeline will serve a critical public need,” Ruby said. “It will provide cleaner electricity and home heating for millions of Virginians and North Carolinians, and it will power local businesses across the two states.”
Ruby said existing pipelines in the regions served by the Atlantic Coast project “are fully tapped and are unable to meet the growing energy needs of public utilities and the economy.” He said a FERC order granting approval of the pipeline will evaluate public need.
Mountain Valley did not respond to a request for comment.
Executives with RGC Resources, whose subsidiaries include a partner in the Mountain Valley project and Roanoke Gas, have said Roanoke Gas plans to install two taps on the pipeline, including one to supply more natural gas for the Roanoke Valley and another to provide gas to Franklin County. The company has said the two transmission pipelines that currently supply its natural gas are at full capacity.
The lawsuit alleges that FERC’s “standard of proof for ‘project need’ is so low as to be meaningless.”
When former FERC Chairman Norman Bay resigned in February he suggested the commission ought to consider refining its evaluation of the need for new natural gas pipelines to guard against overbuilding.
Bay observed that private property advocates have alleged land is being taken by for-profit companies for projects that do not serve a public use. And he referenced the debate about which criteria FERC should examine to establish need, including considering whether agreements to reserve capacity on the pipeline “are largely signed by affiliates.”
A federal lawsuit filed in Roanoke in July by lawyer Justin Lugar on behalf of property owners along the route of the Mountain Valley Pipeline also targeted FERC’s authority to grant private companies the power of eminent domain. The suit noted that FERC has allowed supply contracts with affiliates of companies building pipelines to demonstrate need.
Five of six shippers on the Atlantic Coast Pipeline are affiliates of partners in the joint venture building the project. All shippers on the Mountain Valley Pipeline are affiliates.
A hearing has not been scheduled for the lawsuit filed by Lugar.
The suit filed Tuesday also targets what it describes as FERC’s encouragement of pipeline companies to negotiate easement agreements with landowners in advance of the agency’s issuance of a certificate. That support for pre-certification easement agreements can lead landowners to feel intimidated into negotiating with pipeline companies before the power of eminent domain kicks in, the complaint alleges.
Ruby countered that Atlantic Coast has reached mutual easement agreements with more than 70 percent of landowners along its route.
“All of these agreements were signed voluntarily by the landowners, after mutual negotiation and concessions on both sides,” Ruby said.
Meanwhile, Bill Limpert, whose family farm in Warm Springs would be impacted by the Atlantic Coast Pipeline, noted that FERC is funded by the industries it regulates, a reality he said makes the commission’s power to authorize eminent domain even harder to take.