The dominant message, repeating like a song chorus, communicated this advice: Don’t sign anything without consulting a lawyer.
The speaker was longtime environmental lawyer, Joe Lovett, executive director of Appalachian Mountain Advocates. The setting was a church in Blacksburg, where a crowd of more than 225 people assembled Oct. 28 to talk about how to hamstring a mutual foe — Mountain Valley Pipeline LLC.
The company, a joint venture of EQT Corp. and NextEra Energy, wants to build a 300-mile long, 42-inch diameter transmission pipeline to transport natural gas from West Virginia through Virginia to another transmission pipeline in Pittsylvania County.
A Virginia law passed during the 2004 session of the General Assembly allows natural gas companies to access private property, without the owner’s permission, to examine and survey the property for a possible interstate pipeline route.
That holds true if the company or its subcontractor has followed the notification process outlined by the law. Those steps include a request for permission to access the property sent to the owner by certified mail “not less than 15 days prior to the date of the proposed inspection.”
If a property owner does not grant permission, the pipeline employees who come on the property cannot use motor vehicles, self-propelled machinery or power equipment. The Virginia law holds that the natural gas company is obligated to pay for any damage associated with its incursion.
Scott Geller, 72, lives in a picturesque section of Giles County, a county where such settings are the norm.
Geller, a psychology professor at nearby Virginia Tech for about 46 years, said he fails to grasp why a company would route a large natural gas transmission pipeline through Giles County and, more specifically, his beloved 45 acres.
He said he knew nothing about the Mountain Valley Pipeline until friends encouraged him to attend the meeting at the Blacksburg church.
“I was blown away,” Geller said.
He said he better understood then what the consequences might be if the pipeline routes through his property — which includes the Smokehole Cave, visited on occasion by the Cave Club at Virginia Tech, and a house built from circa-1800s hand-hewn logs salvaged from a barn in Draper.
Geller said he has received requests from Coates Field Service, a right-of-way acquisition company working for Mountain Valley, to survey his property.
Initially, he insisted he would not grant permission. He said his denial would, if nothing else, force the pipeline company to jump through the necessary hoops to visit without his permission.
But then he said he felt torn because he would like to educate the company about the cave and other sensitive features of his 45 acres.
State Sen. Frank Wagner, R-Virginia Beach, was the patron of the bill that allows pipeline companies to access private property without permission. He said Tuesday that the impetus for the bill included pipeline projects in the works at the time that promised economic and strategic benefits.
He said the law was designed, in part, to keep one landowner’s refusal to grant access for soil testing or surveying from derailing what was determined to be a vital infrastructure project.
Wagner said domestic natural gas production in the Marcellus and Utica shale formations can play a key role “in keeping the economy afloat” and decrease the need to import energy from other countries. He said that utilities need natural gas to generate electricity and that a ready supply of cheap natural gas can be important for manufacturers and also provide raw material for some industries.
Asked about exports of natural gas, Wagner said exported gas would generate revenue in the U.S. instead of paying other countries for energy.
Wagner said he knew that the law he helped champion has been in the news lately in connection with three separate proposals for routing interstate natural gas transmission pipelines through the state.
Gov. Terry McAuliffe has expressed support to date for the Mountain Valley and Atlantic Coast pipeline projects.
On Sept. 30, five plaintiffs sued Dominion Transmission, one of the companies proposing the 550-mile Atlantic Coast Pipeline, arguing that the Virginia law granting access to private property without permission is a violation of both the U.S. and Virginia constitutions.
“That’s what the courts are for,” Wagner said, adding that the state’s division of legislative services did not flag the access law back in 2004 as being potentially unconstitutional.
The lawsuit, filed in U.S. District Court in Charlottesville, alleges that the law allows “Dominion to violate plaintiffs’ most fundamental property rights.” All five plaintiffs reside in Nelson County and have received letters requesting permission to survey and study their property as a possible route for the Atlantic Coast Pipeline.
Neal Walters is the attorney for the plaintiffs. He said Dominion has asked the court to dismiss the case and the plaintiffs’ response is due Wednesday. A hearing will likely follow, he said.
Lynda Butler is a professor at the law school at the College of William and Mary and director of the college’s Property Rights Project.
“I have not read the complaint, but I could imagine that in the future landowners might challenge the pipeline’s construction on their land by relying on the ‘takings’ or ‘eminent domain’ clauses of the U.S. and Virginia constitutions,” Butler wrote in an email.
“Possible arguments could include that the construction would be an unlawful condemnation by a private energy company for the benefit of private parties [company profits],” she added.
Butler said the situation is complicated because regulated utilities are quasi-private and quasi-public.
“We all need energy, but will this gas benefit Virginians?” she wrote.
Some pipeline opponents contend that much of the natural gas will end up being exported, a circumstance they suggest would benefit few state residents.
Dominion will seek court order
Walters said he could not comment on whether landowners should consent to allowing their property to be surveyed “because it depends on what the landowners’ goals are.”
Lawyer Carolyn Elefant, based in Washington, D.C., has focused on advising clients about their rights when an interstate natural gas pipeline is proposed for their community.
In a guide she wrote in 2010, Elefant observed, “Refusing to let a pipeline [company] come on your property for surveys won’t do much to deter the project. Most pipeline companies allocate millions of dollars for the certification process and have already factored in the cost of dealing with uncooperative landowners.”
Pipeline construction cannot begin until the Federal Energy Regulatory Commission, which has jurisdiction over interstate natural gas pipelines, issues a certificate of public convenience and necessity.
Elefant said this week that she now feels mixed about whether property owners should grant permission to pipeline companies to access their land. She said property owners can sometimes steer the route away from sensitive areas of their land.
“A lot of times people will think that all they need to do is say ‘no’ and this will all go away,” she said. “The companies are still going to move forward. It doesn’t cost much to run over a landowner because the law is on [the company’s] side.”
Dominion and its partners have said they will not rely solely on the access law to enter private property without the owner’s permission.
“Dominion will enter landowners’ property in our 300-foot study corridor if they have given us permission, or if they have neither said ‘yes’ or ‘no’ (basically, they are ‘neutral’) regarding permission,” said Frank Mack, a Dominion spokesman.
Mack said Dominion will continue to seek an agreement with the landowner and if that fails the company will seek a court order “affirming Dominion’s legal right to survey.”
The court’s ruling would provide a temporary restraining order, he said, that would “restrain the landowner from interfering while our employees or contractors perform survey work on the landowner’s property.”
Natalie Cox, a spokeswoman for EQT Corp., said Mountain Valley will rely, if necessary, on the state law allowing surveying on private property without the owner’s permission.
‘A greedy lot’
Lovett said property owners concerned about the impact of pipeline construction and related blasting might consider documenting their well’s water quality and quantity and their home’s structural stability in advance of that construction.
He said an informed lawyer can help a landowner secure an easement agreement that is strong and protective and compensates them for the decreased value of their property.
Adjacent neighbors also should be compensated for the impact of the pipeline on their property value, Lovett said, even if the pipeline bypasses their property. But Christopher Sherman, an executive with NextEra Energy, said it is unlikely such compensation would occur.
Sherman spoke during a public meeting Wednesday night at Blacksburg High School that attracted hundreds of people.
Montgomery County supervisor Chris Tuck pressed Sherman and three other pipeline representatives that night about how the company would respond if a landowner filed a claim that blasting during construction had affected their well or created foundation cracks.
Sherman said that if such a claim could not be settled with the company it would first go to FERC and then, if necessary, to court.
Tuck observed that landowners, meanwhile, would be without water.
Joe Lombardo, an EQT official, said low-charge explosives would be used during construction.
Meanwhile, Geller referenced Monday the pipeline opposition in Floyd County that preceded Mountain Valley’s revision of the route to avoid that county and pass instead through Roanoke County.
Separately, Sherman reiterated Wednesday night that Floyd County residents’ resistance played no role in the route’s change.
Geller predicted that Mountain Valley officials will come to consider the opposition in Floyd County as comparatively mild when they experience the fierce resistance they will encounter in Montgomery County.
He noted that the current route would take the pipeline through Preston Forest, a neighborhood whose residents include a host of current and former Virginia Tech professors he envisions rallying to fight the project.
“I’m angry,” Geller said. “Here we go again. Why do we have to fight for our little piece of heaven? Why do we have to destroy the environment so that someone can be independently wealthy?
“We are a greedy lot, we Americans.”