The Case Against Eminent Domain

The very large pipelines that will be cutting through West Virginia are using federal eminent domain to acquire property from people who don’t want to sell to them.  The only reason the pipelines can use federal eminent domain is because the pipeline is considered to be a “public use”.

This article by David McMahon, a West Virginia attorney and founder of the West Virginia Surface Owners’ Rights Organization, points out why a pipeline shouldn’t be considered a “public use”.  I fully agree with him.  The full article is worth the read, so I won’t summarize it here.

He also points out how West Virginians “are poor because we cede too often and too much to the drillers and pipeline companies”.  Well said, Dave.  Well said.

FERC Won’t Stop the Pipelines, but the States Might

There are several very big pipelines that are proposed for West Virginia, including the Atlantic Coast Pipeline, the Mountain Valley Pipeline, the Mountaineer Xpress, and others.  There’s a lot of debate over whether these pipelines are good, with most of the lines being drawn over environmental/economic arguments.  Basically, if the environment is more important to you, then you oppose the pipelines and if the economy is more important to you then you support the pipelines.

If you oppose the pipelines, then this article in the Register Herald holds a tasty tidbit for your consumption.

Autumn Crowe with the West Virginia Rivers Coalition said that even if the FERC green lights [the pipeline], if West Virginia fails to issue one of the permits, the project comes to a halt.

That’s something I had not realized until now, and I think a lot of other people hadn’t realized, either.

When I first started researching the pipelines it took about two seconds to discover that they would have the power of federal eminent domain.  In other words, once the FERC gave permission for the project to proceed, any property the pipeline wanted to cross automatically and immediately belonged to them.

I didn’t think there was any way to stop that from happening.

FERC, after all, has only turned down a small handful of projects in its 39 years of existence.  One Atlantic Coast Pipeline official I talked to said only four.

However, if you can show that the West Virginia Department of Environmental Protection shouldn’t issue one of the permits that the pipeline requires, it seems you can actually stop the process.

As I have become more opposed to the pipeline (not on environmental grounds) this gives me and my clients some hope.

Atlantic Coast Pipeline: Proposed EIS

The Atlantic Coast Pipeline has received its draft Environmental Impact Statement (EIS) as of last Friday.  There is a lot of information to digest in the EIS, and if you have a particular concern then I recommend you read that part of the EIS in full.

If you are just interested to know what the EIS says in general, then this write up by Brad McElhinny for the WV Metro News site will do the trick well.

The extremely condensed version is that the FERC doesn’t see the environmental impacts of the ACP as significant.

You may differ in opinion, and if you do you should contact the FERC and file a comment.

In general, we would like to see this and other major pipeline projects completed.  However, we’re negotiating on behalf of landowners to get them the best deal possible and, if need be, help them through the federal eminent domain process.  The initial offer that the pipeline companies make to people is really bad.  The pipeline companies are willing to negotiate, and the changes they have given us are significant.  Call us and see if we can help you out.

Mountain Valley Pipeline: Close to Homes

pipeline-pic-2The Roanoke Times has published numerous articles regarding the Mountain Valley Pipeline, both for and against.  Their latest article, by Duncan Evans, digs into the issue of the risk of having a pipeline close to a home, a school, or a building of any sort.

The article features a couple whose home is within 65 feet of the center line of the pipeline.  Can you imagine your house being that close to a 42 inch pipeline?  I can.  I have a client whose home is within 125 feet of the center line of the Atlantic Coast Pipeline.  When I walked from the house out to the pipeline location and turned around it was shocking.  It feels invasive.  It feels dangerous.  Regardless of how well engineered and well built the pipeline is, it would never feel completely comfortable.

That doesn’t take into account how disruptive the construction of the pipeline will be to those folks’ lives.

I’m no opponent of either pipeline project.  I see them as beneficial to West Virginia’s economy.  They’ll provide short term construction jobs and long term natural gas development and production jobs.  They’ll provide some nice tax dollars for a while, and some nice financial windfalls to surface owners.  They’ll provide a cleaner-burning fuel for power plants.

I am an opponent of putting pipelines too close to peoples’ houses.

 

Atlantic Coast Pipeline: Opposition

There are several groups that oppose the Atlantic Coast Pipeline and the Mountain Valley Pipeline.  The Southern Environmental Law Center, the Appalachian Mountain Advocates, and several local county groups.  There are probably some others I don’t know about.  Most of the opposition is focused in Virginia, but there is a little bit of organized opposition in West Virginia.

We’re in favor of the pipeline, as the additional takeaway capacity should increase the amount of development in West Virginia, and increased development here will increase the amount of business we do.

At the same time, it kind of hurts to see long stretches of West Virginia become less wild and wonderful.

pipeline-pic-2

This may not be West Virginia, but it sure looks a lot like what I’ve seen.

 

 

On the other hand, all but a few thousand acres of West Virginia was clear cut by the first few decades of the 20th century, so it wouldn’t be the first time that West Virginia has come back from intense environmental impacts.

That’s all beside the point, though.

These pipelines are going to be in the ground for decades.  Why?  There is enough gas in West Virginia to produce for decades, and in spite of the green movement (nothing against them, I think solar, wind, geothermal, and wave/tide are really cool tech) stating it can provide enough energy, the numbers just don’t support the claims.  It’s going to be decades before green energy is more than just a small proportion of total energy output.  So we’re going to need these pipeline for decades.  There will probably be more in the future, too.

In spite of the claims of the pipeline opposition groups, we do need these pipelines.  They do need to be done safely, and they do need to be done with as little environmental impact as possible, and the landowners’ needs have to be met.  But they do need to be done.

 

Pipelines: FERC isn’t Going to Stop the Atlantic Coast Pipeline or the Mountain Valley Pipeline

Here is a well-reasoned editorial published in the Roanoke Times that makes a really good case for the argument that the FERC isn’t stopping the pipelines.  It points out (perhaps accidentally) that the FERC doesn’t do a good job of making anybody happy, but it does an excellent job of doing what it’s supposed to.  I won’t steal the article’s thunder as it’s not exactly long and is well written.

Pipeline News Article with some Substance

It’s rare to see a news article about either the Atlantic Coast Pipeline or the Mountain Valley Pipeline to have much other than environmental or company rhetoric.  This one is the exception, including quotes from a Virginia attorney who obviously has some experience with pipeline easements, quotes from some actual easement agreements, a bit of analysis, and some hard numbers.  It was nice to see.  Please pop over to the article and read it.

Atlantic Coast Pipeline: Schedule

A couple days ago the FERC issued a notice that the final Environmental Impact Statement for the Atlantic Coast Pipeline would be finished on June 30, 2017.  After the EIS is available, there is a 90 day decision deadline, basically an opportunity for other federal agencies to weigh in on the EIS.  So on September 28, 2017, the EIS is expected to be approved.

The ACP will not be able to begin construction before that date.  When, exactly, it will begin construction is unknown.  Dominion had previously hoped to begin construction in the summer of 2017, but unless you consider the end of September to be the summer that looks pretty unlikely.

Comment Time on the Atlantic Coast Pipeline

If anyone would like to comment to the FERC about the Atlantic Coast Pipeline, now is the time to do so.  My comments would focus on opposition to the use of eminent domain and on the safety concerns I have recently found.  Others are concerned about damage to the immediate environment around the pipeline and the trickle down effects on global warming.  Some few are concerned that we are overbuilding pipeline infrastructure.  Whatever your concern, now is the time to voice your opinion.

The link to use when filing your opinion is:

https://ferconline.ferc.gov/QuickComment.aspx

Good luck!  Regardless of the outcome lets be grateful we live in a place where we can at least voice an opinion.