A federal judge says her courtroom is not the place to determine whether the taking of private property for the Mountain Valley Pipeline amounts to what a lawsuit called a “government-sanctioned land grab.”
U.S. District Court Judge Elizabeth Dillon dismissed part of a lawsuit filed by landowners in the pipeline’s path.
The landowners had claimed that the Federal Energy Regulatory Commission’s approval of the project was an unconstitutional overreach that gave Mountain Valley authority to use land it does not own through the controversial process of eminent domain.
That challenge was made “in the wrong court at the wrong time,” Dillon wrote in an opinion issued Monday.
Although she dismissed FERC from the case, Dillon kept alive a second part of the lawsuit that calls into question the manner in which Mountain Valley has attempted to obtain easements for its natural gas pipeline to pass through the land of objecting property owners.
Mountain Valley’s surveys of parcels along the route without permission from the owners represent an unlawful “taking” of the land with no compensation, the lawsuit claimed. Dillon said she will hear additional arguments on that assertion.
“We’re pleased that she allowed that claim to go forward,” said Justin Lugar, a Roanoke attorney who represents the 17 landowners who filed the lawsuit. No court date has been set.
Developers of the 303-mile pipeline, which would pass through the Roanoke and New River valleys on its way from West Virginia to Pittsylvania County, have obtained many of the governmental permits needed to begin construction — leaving court challenges as one of the few remaining options for opponents.
Filed in July, Lugar’s lawsuit challenged FERC’s authority to “sub-delegate” the power of eminent domain — a legal process that allows the taking of private land for public uses, such as a pipeline or a highway — to a corporation like Mountain Valley that stands to collect a profit.
“It’s FERC run amok,” Lugar said. “They get to do what they want, with impunity.”
Shortly after FERC issued what’s called a certificate of public convenience and necessity for the pipeline in October, finding there was a need for the natural gas that would be shipped through the 42-inch diameter steel pipe, Mountain Valley filed an eminent domain lawsuit against about 300 property owners standing in its way.
A similar action was taken this week by the Atlantic Coast Pipeline, which received FERC approval on the same day as MVP.
Even before it ruled, FERC was accused in the lawsuit of lacking the proper standards to determine whether public benefits outweigh the rights of private landowners.
Without proper oversight from Congress that dates back to the 1940s, “FERC has run wild in the years since, and has unconstitutionally sub-delegated the power of eminent domain to private parties seeking private profits,” the lawsuit states.
Lugar said he plans to appeal. A FERC spokeswoman declined to comment Tuesday, citing the agency’s policy of not talking about pending litigation.
In her 16-page opinion, Dillon sided with attorneys from the federal agency and Mountain Valley, who had argued that the proper venue to challenge FERC was through a federal appeals court, not her Roanoke-based district courtroom.
Under that process, those who object to one of the agency’s decisions have 30 days in which to ask for a rehearing and a stay of the order while the case remains pending. Only after that process is completed do opponents have the avenue of seeking review from an appellate court.
But before they can do that, there has to be a final decision to appeal. Critics of the process have argued that FERC often issues what’s called a “tolling order” that extends the matter indefinitely while it takes more time to consider the rehearing petitions — often allowing construction to begin while blocking any legal challenges to the order.
“If you go with the FERC system, you’re stuck there and you get no remedies whatsoever,” Lugar said.
In an effort to avoid that trap, Lugar argued that his lawsuit did not dispute a single regulatory decision, but rather was a constitutional challenge to the framework of FERC’s authority to decide what constitutes a sufficient public use.
Dillon saw it differently. “Plaintiff’s own complaint — and their standing arguments — make clear that they are concerned not with some abstract constitutional violation, but with the fact that their land will be affected by MVP’s proposed pipeline,” the judge wrote.
Those objections should go to a federal appeals court, Dillon said in finding that she lacked jurisdiction to hear three of the lawsuit’s four counts.
The one count that Dillon did not dismiss asserts that Mountain Valley took property and data from landowners during a surveying process used to map the pipeline’s route.
Surveyors often collect valuable information and, occasionally, tangible items such as historical artifacts and samples of water and soil.
“Like an invasive non-consensual blood draw or an unauthorized disclosure of private medical records, the information and data that MVP collects about a landowner’s property is not readily ascertainable or available from public records, and amounts to an unlawful private taking,” the lawsuit states.
And that, critics contend, violates the Virginia and U.S. constitutions.