Eminent Domain: Finding Common Ground

Several environmental groups are teaming up with property rights advocates to file suit against the Federal Regulatory Commission (FERC), challenging the Commission’s use of eminent domain in siting pipelines.

In October, Mountain Valley Pipeline filed a lawsuit in federal court against Virginia landowners to initiate the acquisition of easements via eminent domain authority through their property. In its lawsuit, Mountain Valley claimed that condemnation of the lands was necessary “because [Mountain Valley Pipeline] . . . has been unable to negotiate mutually agreeable easement agreements with landowners.”[1] FERC had approved the Pipeline’s ability to condemn private property through the Natural Gas Act, finding the pipeline to be in the public interest.

The landowners joined environmental groups in filing suit in the U.S. District Court for the Western District of Virginia on the grounds that the use of eminent domain authority violates the Fifth Amendment of the Constitution, which requires that property be taken for the “public use” and that “just compensation” be paid.[2] The case is a challenge to the constitutionality of the Natural Gas Act which allows FERC to confer eminent domain authority unto pipelines provided the takings qualifies as serving the “public interest.” The case was all but dismissed by the Virginia Court on jurisdictional grounds recently.[3] The claims were dismissed on the grounds that federal appeals courts are the only acceptable venue to hear eminent domain cases challenging the Natural Gas Act.[4] The court, however, preserved the claims of in-state defendants.[5] As such, the only pending claim is a challenge by in-state landowners challenging surveying work already completed for the siting of the pipeline.[6] Lawsuits raising similar issues have been filed by environmental groups and property rights advocates against the pipeline in the U.S. District Court for the District of Columbia.

Ultimately, as argued in prior pieces on the subject, the current use of eminent domain authority follows neither fundamental economic nor constitutional principles. Rather, it is a manifestation of the widening inequalities in our nation. It is the process by which a large corporate entity approaches a small landowner with convoluted legal language that is “broad, complicated and somewhat unlimited” and strong-arms them to sign away their property rights in the name of some amorphous and ill-defined “public interest.”[7] That image is, understandably, something all Americans can, and should, oppose, even in these highly divisive times.

 

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[1] Dunan Adams, Mountain Valley Sues Landowners to Gain Pipeline Easements and Access Through Eminent Domain, The Roanoke Times (Oct. 27, 2017), http://www.roanoke.com/business/news/mountain-valley-sues-landowners-to-gain-pipeline-easements-and-access/article_abff5d87-1aee-5a50-b3c2-b3ee0c812e44.html (citing Mountain Valley legal brief).

[2] Berkeley et al. v. Mountain Valley Pipeline et al.https://www.gentrylocke.com/wp-content/uploads/2017/07/GentryLocke_FERC-Complaint.pdf.

[3] Jenny Mandel, Va. Court Tosses Most of Eminent Domain Suit, EnergyWire (Dec. 12, 2017), https://www.eenews.net/energywire/2017/12/12/stories/1060068711.

[4] Id.

[5] Id.

[6] Id.

[7] Dunan Adams, Mountain Valley Sues Landowners to Gain Pipeline Easements and Access Through Eminent Domain, The Roanoke Times (Oct. 27, 2017), http://www.roanoke.com/business/news/mountain-valley-sues-landowners-to-gain-pipeline-easements-and-access/article_abff5d87-1aee-5a50-b3c2-b3ee0c812e44.html (citing Chuck Lollar, Norfolk-based lawyer who specializes in eminent domain).

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