By: Duncan Adams
The Supreme Court of Virginia has agreed to hear another appeal challenging a controversial state law that allows surveyors for natural gas pipeline companies to enter private property without an owner’s consent.
Chuck Lollar, a Norfolk-based lawyer representing six landowners along the route of the proposed Atlantic Coast Pipeline, said he learned this week that the full court will hear the appeal filed in May. A hearing date has not been not scheduled.
Meanwhile, survey crews working for Mountain Valley Pipeline are venturing back into the field. A circuit court hearing Thursday in Franklin County granted the pipeline company a court order to proceed with surveying a property there, and an order signed Wednesday by a Roanoke County Circuit Court judge paved the way for surveyors to return to the Terry family properties on Bent Mountain.
Lollar’s appeal, like two cases the high court heard in April, focuses on the law that sanctions pipeline surveying on private land even if an owner denies permission as long as the natural gas company has provided adequate notice as defined by the statute.
The law, enacted in 2004, has provoked bitter disputes between landowners and survey crews seeking routes through Virginia for the proposed Mountain Valley Pipeline and the Atlantic Coast Pipeline. Each interstate project would bury a 42-inch diameter pipe designed to transport natural gas at high pressure.
Even though surveying continues, both projects say about 98 percent of that work in Virginia is complete.
The state Supreme Court has so far upheld the survey law. But Lollar’s appeal raises two challenges not previously heard by the court.
He contends that the surveys insisted upon by the Atlantic Coast Pipeline were not necessary to meet regulatory requirements, which he says is one condition of the law. And he argues that the law violates the Virginia Constitution because the surveys are an illegal taking of private property without compensation.
Lollar’s appeal contested a ruling in February 2016 by a judge in Nelson County, who granted a judgment sought by Atlantic Coast that sanctioned entry by surveyors on the property of landowners represented by Lollar.
Lollar said in an email Thursday that he and his clients feel encouraged that the court agreed to hear the appeal without requiring oral argument Wednesday before a three-judge panel.
“We believe the Virginia Supreme Court, in granting our appeal without argument before yesterday’s writ panel, indicates a genuine interest in addressing our clients’ claims that the right to trespass statute violates their constitutional guarantees and property rights which Virginians hold dear as the guardian of every other individual right,” he said.
In rulings in July, the court upheld the survey law nearly three months after hearing arguments tied to two separate appeals, one of which had challenged the law’s constitutionality.
In that case, the court’s decision, written by Justice William Mims, 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 court ruled that Augusta County landowner Hazel Palmer’s “right to exclude” others from her private property was not absolute.
In a separate decision also focused on Virginia’s survey law and the Atlantic Coast project, the 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.
At the time, Aaron Ruby, a spokesman for Atlantic Coast, said the company hoped the court’s decision in the Palmer case would settle constitutional questions about the survey law.
Yet others, including Maureen Brady, an associate professor of law at the University of Virginia School of Law, observed that new challenges might follow.
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,” she said.
An amendment to the state constitution 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 that the projects primarily would benefit company stockholders.
Justin Lugar, a lawyer in Roanoke who has represented landowners resisting surveying by Mountain Valley, has argued that when surveyors leave a property, they take with them data that has value, including details about wetlands, soils, springs and the like.
Lugar also has challenged the survey law in a federal lawsuit filed in Roanoke late last month on behalf of 17 plaintiffs who own 10 properties along the proposed route of the Mountain Valley Pipeline. The lawsuit alleged that surveys of private property without an owner’s permission represent unconstitutional takings.
He also tackled larger issues.
As interstate pipelines, both the Mountain Valley and Atlantic Coast projects need approval from the Federal Energy Regulatory Commission. If FERC approves the pipelines, each will have access to use eminent domain to acquire easements across private properties.
Lugar argued in the lawsuit that FERC should not be able to grant the power of eminent domain to a private company for its pursuit of “private pecuniary gain.”
A hearing on Lugar’s lawsuit has not been scheduled in U.S. District Court.
Meanwhile, Ruby said Thursday that Atlantic Coast rejects the assertion that surveying activities are takings.
“Surveys are minimally invasive, and they typically take a day or two to complete,” he said. “In the rare case where property is damaged, we compensate the landowner as we are required to do under Virginia’s survey law.
“It’s in everyone’s interest that we choose a route with minimal impacts on the environment and landowners, and surveys are the most effective way to do that,” Ruby said.
Lollar’s appeal contends that “exercising physical dominion over property, even temporarily,” constitutes a taking of property rights.