Joe Waldo, a prominent eminent domain lawyer in Virginia, likened natural gas pipeline companies’ tactics to bullying and said property owners might reach a point of having to ask the local sheriff to escort survey crews off their land.
The joint venture backing the proposed Mountain Valley Pipeline has said it will rely on a state law, as a last resort, to allow crews to survey property without an owner’s consent as the companies seek to establish a route for the controversial interstate natural gas pipeline.
Waldo said that the Mountain Valley Pipeline — as well as the Atlantic Coast Pipeline, proposed for another region of Virginia — cannot “forum shop,” citing state law as the foundation for accessing land while seeking approval for the pipeline projects through a federal process overseen by the Federal Energy Regulatory Commission.
“This is just intimidation because they have no legal right under federal law at this point to trespass,” Waldo said.
Property owners along Mountain Valley’s proposed route might be among those who turn out Monday night in Blacksburg to hear Waldo and others from his Norfolk-based law firm share their expertise.
The public meeting, organized by Preserve the New River Valley, will be held at 7 p.m. at Custom Catering on Patrick Henry Drive.
Angela Stanton, among the founders of Preserve the New River Valley, said the group invited Waldo and his firm to provide a forum where landowners could hear from “leading legal experts on their property rights as it relates to the Mountain Valley Pipeline project as well as other pending pipeline projects.”
During an interview this week, Waldo referenced a certified letter sent recently by Dominion Transmission to 189 property owners in Virginia who had denied access to their property for route surveying for the proposed 550-mile Atlantic Coast Pipeline.
The correspondence warned that if Atlantic Coast Pipeline LLC does not obtain a property owner’s consent, it will “file a lawsuit to secure a court order granting access” to study and survey the property.
Dominion’s letter cited a Virginia law that allows a natural gas company to access property without an owner’s permission as long as the company follows certain notification requirements.
Jim Norvelle, a Dominion spokesman, said in an email that the letter “was an extra step not required by Virginia law.” He said it was intended to provide one more opportunity for landowners to grant permission for study and surveying.
“We have met the notice requirements of Virginia law and could have come onto their properties and performed the surveys,” he said. “We thought that the right thing to do was to give them an additional opportunity to allow us before we ask the state court to affirm the Virginia law” and allow the surveys to proceed.
Backers of the Mountain Valley Pipeline, a joint venture of EQT Corp. and NextEra Energy, said they intend to rely on the same law to gain access to a property if its owner denies permission. They have said they do not plan to seek a related court order.
Waldo said the Mountain Valley Pipeline approach is especially bullying because it would bypass involving the courts.
Separately, a group of plaintiffs in Nelson County is challenging the constitutionality of the Virginia law that allows natural gas companies access to property for surveying without an owner’s permission.
Raising court challenges
The route of the 300-mile Mountain Valley Pipeline would take the buried 42-inch diameter pipe through the counties of Giles, Montgomery, Roanoke, Franklin and Pittsylvania while pumping natural gas at high pressure from West Virginia to a delivery point in Pittsylvania County.
In a nutshell, Waldo’s advice to landowners from whom a Mountain Valley Pipeline contractor seeks access for surveying is to refuse to grant permission for what would be a federally authorized project until FERC provides the necessary authority by issuing a certificate of public convenience and necessity.
In an email, Waldo added, “Furthermore, signing pipeline company documents to allow a survey almost always grants more power to the pipeline company than they could obtain in court.”
If a surveying crew shows up anyway, citing state law to justify their access, property owners who have refused permission should call the office of the sheriff, a constitutional officer, and request that the surveyors be escorted off the property, Waldo said.
Carolyn Elefant is another lawyer with expertise about property rights and interstate natural gas pipelines. She said recently that she is no longer sure that withholding access from surveyors is always the best approach. There are occasions, she said, when input from landowners can favorably alter a pipeline’s route.
About 25 years ago, Waldo lost property to eminent domain. Today, the law firm of Waldo & Lyle focuses exclusively on representing clients, typically at no charge, who are facing the prospect of losing some or all of their property through eminent domain.
“We believe in what we do,” Waldo said. “We’re passionate about it.”
Waldo said his firm will challenge the pipeline companies in court, arguing that they must wait until getting FERC approval before being able to enter properties without the owners’ permission.
Both pipeline projects are in the early stages of the pre-filing process with FERC.
FERC says that the pre-filing phase “is designed to engage stakeholders — the public, including landowners, federal, state, and local agencies — to identify and resolve issues before the formal filing of an application with the commission.”
Dominion’s recent letter to property owners who had refused access stated: “We firmly believe it is in the best interests of all landowners to grant access, even those landowners who do not support the project.”
Access “can determine the best route for the pipeline and whether the parcels in question are, in fact, suitable for pipeline construction at all,” the letter reported.
Norvelle said that surveying is one part of the pipeline process covered by state law, and that pipeline construction relies on the federal Natural Gas Act.
Natalie Cox, a spokeswoman for the Mountain Valley Pipeline project, reported Friday that the joint venture has received permission to conduct survey work from 82 percent of the landowners it has contacted.
Cox said in an email that Mountain Valley “is confident that we have the legal authority under Virginia statute to access property for survey activity, as long as we comply with the strict requirements of Virginia law.”
She added, “However, I want to emphasize that this is an absolute last resort, and we are dedicated to working closely with each landowner to avoid surveying their property without their permission.”
Cox said that once landowners recognize that agreeing to allow access for surveying does not grant permission to build the pipeline, they typically permit the surveying to proceed.
Pipeline advocates say the new infrastructure will help support the nation’s energy independence by providing greater access to abundant natural gas being extracted by hydraulic fracturing in the Marcellus and Utica shale formations in West Virginia, Pennsylvania and Ohio.