CHRISTIANSBURG — Giles County landowners who are challenging Mountain Valley Pipeline’s right to survey private property without an owner’s consent left court without a ruling Wednesday.
They did not win. They did not lose.
Neither did Mountain Valley, which had asked the court to dismiss the case brought by eight property owners.
Instead, Montgomery County Circuit Court Judge Robert Turk said he will disclose his ruling in the weeks ahead.
For plaintiff Rick Shingles, the judge’s decision to spend time weighing the issues was a victory of sorts for property owners squaring off against Mountain Valley.
“It indicated our attorneys made a sound case,” he said.
The issues debated included whether the owners of private property in Virginia have the right to exclude from their land surveyors for a natural gas pipeline company that opponents say is bent on private gain.
The survey work Mountain Valley hopes to complete precedes the possibility of its future use of federally sanctioned eminent domain, if necessary, to acquire a right-of-way for a pipeline route across private property.
Mountain Valley says the survey work provides key facts that will help it choose the best route to include in its application to the Federal Energy Regulatory Commission.
If a property owner denies access to surveyors and Mountain Valley receives a court order to survey anyway, relying on a controversial state statute that appears to grant such authority, does that action enable an unconstitutional “taking” of private property without compensation?
Should Mountain Valley have to wait for FERC’s approval of the private company’s $3.2 billion project before it can survey private property without an owner’s permission?
Lawyers for the property owners along a possible pipeline route in Giles County insist it should. Lawyers representing Mountain Valley Pipeline insist it should not.
Derek Teaney and Isak Howell, lawyers from Appalachian Mountain Advocates, a nonprofit based in West Virginia, represented the plaintiffs.
Wade Massie and Seth Land, Abingdon-based lawyers for PennStuart, represented Mountain Valley.
Massie argued that the state law that allows natural gas companies to survey private property without permission does not affect ownership or use of the property.
Instead, he said, the statute, 56-49.01, provides solely for temporary visits necessary to develop sound pipeline routes — an outcome that benefits everyone, he said.
Massie said the right of property owners to exclude people from their property is not absolute — a point conceded by both Turk and Teaney.
Massie said the Mountain Valley Pipeline will not be built unless FERC issues a certificate of public convenience and necessity. He said the infrastructure project clearly offers a public benefit by providing natural gas to consumers.
The pipeline would transport natural gas at high pressure through a buried, 42-inch diameter steel pipe from Wetzel County, West Virginia, to Pittsylvania County.
Residents of Giles County could be impacted by pipeline route alternatives. Some have granted permission for surveying.
The lawsuit that was the focus of Wednesday’s hearing was initiated last month after Mountain Valley failed to follow the notification requirements outlined in 56-49.01 that allow surveying without permission.
The plaintiffs asked the court to prohibit the surveying and also challenged the constitutionality of the law. Similar challenges have been filed in federal court and in Virginia counties that are along the route of the separately proposed Atlantic Coast Pipeline. Those cases are still working their way through the courts.
Teaney said that the Virginia constitution describes the right to private property as fundamental and declares that such property should not be damaged or taken except for public use.
He said Mountain Valley’s surveying of private property without permission represents a “taking” that offers no related compensation.
The FERC process has not even formally begun, Teaney said. Mountain Valley is in the pre-filing phase with FERC.
The plaintiffs have asked the court for an injunction prohibiting Mountain Valley from surveying their properties and also seek a declaration that 56-49.01 is unconstitutional.
Howell said Turk’s ruling might focus primarily on Mountain Valley’s motion to dismiss the case. If Turk denies that motion, then the case challenging the state law could proceed, he said.