LYNCHBURG — Thanks to a federal court opinion issued Thursday, tree-felling along the route of the Atlantic Coast Pipeline now will begin on more than a dozen properties in Virginia.
Following two days of arguments in the U.S. District Court’s Western District of Virginia court in Lynchburg on Monday and Tuesday, Judge Norman Moon issued an opinion Thursday allowing the 600-mile, interstate natural gas project “immediate access” to 16 properties in Buckingham, Bath, Augusta and Highland counties.
Property owners for the 16 properties were sued by ACP under the power of eminent domain because they had not signed easement agreements for permanent and temporary rights of way.
ACP sought immediate access so it could comply with a mid-March tree-felling deadline from the Federal Energy Regulatory Commission and U.S. Fish and Wildlife Service, set to protect migratory birds and bats.
“We’re pleased with the court’s decision. This is an important step forward for the project and keeps us on track to begin construction by early spring,” said Aaron Ruby, spokesperson for lead ACP developer Dominion Energy.
A total of 27 cases were considered by Moon this week. ACP was not granted immediate access to 11 properties because of notice issues, meaning parties were not served the lawsuits or did not have adequate time to respond.
Moon said in the opinion he will defer ruling on those cases, which include some properties in Cumberland County, until proper notice is achieved, which could happen in the next two weeks.
Benjamin Perdue, an attorney representing one of the parties that was ruled against, said he and his clients weren’t surprised by Moon’s opinion given recent federal rulings on eminent domain cases in other pipeline projects.
“We’re obviously disappointed by the court’s ruling, but were somewhat expecting it,” he said. “… We’re going to consider our options on appeal … and in the meantime, we’ll continue to work on the issue of just compensation.”
Charles Lollar, another attorney representing landowners in eminent domain suits, said he, too, wasn’t surprised by the opinion. He said his clients, the Ellises, and their business, a 100-plus-year-old cattle farm in Buckingham County, will be affected negatively by the tree-felling and forthcoming construction of the pipeline.
“For the Ellises, this is a very hard pill to swallow. This is their entire life and their livelihood,” Lollar said. “It’s hard enough to be a farmer; being a farmer is not easy. Period. Any way you swing it. … And then you throw in something like having to deal with a pipeline project like this and you make something that’s already hard enough extremely difficult.”
With some state permits still outstanding, ACP currently only is allowed to conduct non-mechanized tree-felling on the 16 properties and on land for which easement agreements already have been signed.
More than 80 percent of landowners along the 600-mile route — which would cross through West Virginia, Virginia and North Carolina, including about 27 miles in Nelson County — have signed easement agreements, according to Ruby.
Ahead of Monday and Tuesday’s federal hearing Nelson County landowners Will and Lilia Fenton, who also were sued as part of the wave of eminent domain suits, agreed to allow ACP immediate access to their property.
The Fentons, under the company Fenton Family Holdings LLC, were sued for access to land near their bed-and-breakfast near Wintergreen Resort, the Fenton Inn. The couple said Monday they had reached an agreement outside of court to allow ACP immediate access, meaning tree-felling on the property will begin soon.
A second party in Nelson, Wintergreen Property Owners Association also was sued by ACP. But the WPOA and ACP are undergoing mediation to determine just compensation and settle the issue of immediate access.
WPOA could not be reached Thursday to answer whether it would allow ACP immediate access for tree-felling.
Landowners represented during this wave of suits still have not signed easement agreements, and just compensation for the land still must be determined in court.
“We recognize the important contribution of these landowners. The Atlantic Coast Pipeline is a public infrastructure project for the public good. It will bring cleaner electricity, lower energy costs and more economic opportunity to millions of people across Virginia and North Carolina,” Ruby said. “We could not achieve this without the contribution of these landowners, and they deserve our recognition and appreciation.
“As the court process enters the next phase, we remain committed to fairly compensating all landowners,” Ruby said. “We will be responsible stewards of their land, and we’ll continue working with them to minimize impacts on their property and daily lives.”
Just compensation cases could take years, according to Moon’s opinion, and is a factor he considered when granting immediate access.
“Waiting until all of [the just compensation cases] have finished almost certainly would push ACP beyond the [late 2020] FERC [construction deadline],” Moon wrote.
“ACP’s desire for some cushion in its schedule is necessary. It is impossible for ACP, or this Court, to know what possible issues may arise during the midst of construction. But issues will arise … and failing to budget time for any margin would almost certainly lead ACP to miss the FERC deadline,” he wrote.
In response to landowner testimony Monday and Tuesday from property owners in Buckingham and Bath counties, Moon wrote, “These harms, and the harms that the unrepresented Landowners will face, are real. … The Landowners’ harms must be balanced with the equally real harms that ACP will face if its construction is delayed. I find the balance of the equities tips in ACP’s favor.”
Moon also set deposit and bond amounts required before tree-felling can begin. In all but one case, Moon said deposits for each parcel will be the amount of ACP’s final offer, outlined in final easement offer letters sent by ACP to landowners, and bond will be three times that amount.