September 15, 2017


Virginia Supreme Court Ruling Upholds Pipeline Surveying Law; Challenges Still Possible

By Duncan Adams

The Virginia Supreme Court issued a unanimous ruling Thursday that upheld a controversial state law allowing natural gas companies to survey private property for a possible pipeline route without an owner’s consent.

The ruling came nearly three months after the high court heard oral argument in the case. And it followed two tense days on Bent Mountain when landowners clashed, peacefully, with a survey crew working for Mountain Valley Pipeline.

The court’s decision addressed a case focused on the separate but similar Atlantic Coast Pipeline. It affirmed a 2016 judgment by an Augusta County circuit court judge that a “landowner has no constitutionally protected property right to exclude an authorized utility from entering his property for survey purposes.”

The Supreme Court ruled that Augusta County landowner Hazel Palmer’s “right to exclude” others from her private property was not absolute. It concluded that “Palmer’s fundamental property rights do not include the right to exclude [the Atlantic Coast Pipeline] in the present case.”

In a separate decision also focused on Virginia’s survey law and the Atlantic Coast project, the Supreme Court ruled that Atlantic Coast’s previous practice of notifying landowners of when surveying would occur provided insufficient notice by stating it would occur “on or after” a certain date. The court ruled that the “on or after” notice raised the possibility that “entry could occur years after the stated date.” Atlantic Coast revised its notification procedures in May 2016, providing a range of possible dates for surveying.

The two decisions, both written by Justice William Mims, represent the high court’s first judgments on a 2004 law that has become a flash point in the bitter battles between property owners and the developers of the Atlantic Coast and Mountain Valley natural gas pipelines.

Aaron Ruby, a spokesman for Atlantic Coast Pipeline, said the company is hopeful the court’s decision in the Palmer case will settle questions about whether the survey law is unconstitutional.

“We’re pleased the Virginia Supreme Court has upheld the constitutionality of Virginia’s survey law and reaffirmed our right to perform these surveys,” Ruby said. “The court’s ruling is consistent with the rulings of every other state and federal court that has looked at this issue.”

Yet others familiar with state law said there are potential challenges that the court still might be asked to consider.

“The Supreme Court of Virginia seems to suggest the statute does not violate the Virginia Constitution — at least partly because there are exceptions for entry on property that apply,” said Carl Tobias, a professor of law at the University of Richmond School of Law.

“It is not clear that this precludes other appeals but it may be difficult for another plaintiff to challenge the law,” he said.

The Palmer case did not address some aspects of the contention that surveying private property without permission represents an unconstitutional “taking” of property without compensation — for example, whether the two pipelines, both proposed by private companies, will provide a “public use.”

The Virginia Constitution includes an amendment that holds that the General Assembly “shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.” It specifies that the “taking or damaging of private property is not for public use” if the primary use is for private gain or private benefit. Opponents of the two pipelines contend the projects primarily would provide benefits for pipeline company stockholders.

“No doubt, as the pipelines — and the litigation surrounding them — continue, we will see challenges relating to the public use and just compensation pieces of the takings analysis,” said Maureen Brady, an associate professor of law at the University of Virginia School of Law with expertise in property law.

L. Steven Emmert, a Virginia Beach lawyer and appellate court expert, said, “If Palmer didn’t assert a takings claim [in the appeal], that cannot foreclose another litigant from raising and fully litigating it.”

Mims, a former delegate, state senator and attorney general in Virginia, voted as a senator for Senate Bill 663, the legislation adopted in 2004 that became the right-of-survey statute in state code.

Mims’ decision noted that Palmer’s lawyers did not argue on appeal that entering the property without landowner permission represented an unconstitutional taking, an argument made by plaintiffs in Nelson County in a case that a U.S. District Court judge decided in favor of the statute — a ruling that has been appealed to the U.S. Court of Appeals for the Fourth Circuit.

“Today, every state has codified the common law privilege of a body exercising eminent domain authority to conduct preliminary surveys without trespass liability,” Mims wrote. “Virginia statutory law has done so for 235 years.”

Yet Chuck Lollar, a Norfolk-based lawyer with expertise in eminent domain litigation, said neither the Atlantic Coast Pipeline nor the Mountain Valley Pipeline has the power of eminent domain and won’t unless the interstate pipeline projects are approved by the Federal Energy Regulatory Commission.

As for the issue of public use, Brady noted that “the West Virginia Supreme Court held last year that the Mountain Valley Pipeline was not being constructed for a public use within the provisions of that state’s constitution, in part because MVP could not ‘identify even a single West Virginia consumer, or a West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit from MVP’s pipeline.'”

Justin Lugar, a lawyer in Roanoke who has represented landowners resisting efforts by Mountain Valley to survey their property, has argued that survey crews leave properties with data that has real value in the information age, including details about wetlands, soils, springs and the like.

Ruby said Atlantic Coast rejects the assertion that surveying activities are takings.

“The surveys we’re performing are not takings because they’re minimally invasive and temporary,” he said. “They typically take a day or two to complete. That’s been the view of every state and federal court that’s looked at this issue.”

Meanwhile, the court dismissed arguments posed by lawyers for Palmer, a Lynchburg widow who owns property in the pipeline’s path in Augusta County, that the law does not apply to companies that aren’t licensed and regulated as public service companies in Virginia.

And the court did not consider an argument by Henry Howell III, Palmer’s main attorney, that the statute violated a provision of the state constitution that “prohibits foreign public service companies from utilizing its entry-for-survey power.”

Atlantic Coast Pipeline is incorporated in Delaware.

The court said Howell had waived the issue because he did not raise it at the trial court level or in his client’s opening brief, as the court’s rules require.

Mims’ ruling noted that the survey law “applies to foreign natural gas companies … that do business in Virginia, including ACP.”

Both the 600-mile, $5.2 billion Atlantic Coast Pipeline and the 303-mile, $3.5 billion Mountain Valley Pipeline would originate in West Virginia and transport natural gas at high pressure through 42-inch diameter buried pipelines.

As interstate pipelines, the projects need approval from FERC before construction can begin. FERC recently released a final environmental impact statement for the Mountain Valley project and is scheduled to release the environmental statement for the Atlantic Coast project on July 21.

Ruby said Atlantic Coast has completed about 98 percent of surveying along the project’s route. Mountain Valley has said it has completed about 97 percent.

Lawyer Isak Howell of Appalachian Mountain Advocates said he was pleased by the court’s ruling that Atlantic Coast’s past practice of notifying landowners that surveying would occur “on or after” a specified date was inadequate.

“The landowner needs to be there during surveying and has a right to be there and the only way to do that is to hold the pipeline companies to a date,” Howell said, noting that the provision of a range of dates still leaves property owners in a potential lurch.

The court observed that the survey law allows the landowner “to be present during the tests if desired, arrange for livestock to be confined prior to entry and ensure that any property damage is documented.”

Michael Martz of the Richmond Times-Dispatch contributed information to this story.


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