Virginia Legislators Seek Repeal of Law Granting Pipeline Companies Access to Land Without Permission

By Duncan Adams, Roanoke Times

A self-described conservative, business-friendly Republican in the Virginia Senate hopes colleagues in the General Assembly will repeal an increasingly controversial state law that grants natural gas companies the right to access private property without an owner’s permission to study and survey the property, without compensation, for a possible pipeline route.

Sen. Emmett Hanger, R-Augusta County, emphasized that he supports the Atlantic Coast Pipeline and believes it could add vital natural gas infrastructure.

But he said the companies currently proposing two interstate natural gas transmission pipelines whose paths would travel through Virginia should be able to define routes without having to survey property without an owner’s permission — or, later, turn to eminent domain to purchase pipeline easements.

“This is migrating from an issue about energy to an issue about private property rights,” Hanger said Wednesday.

Hanger’s constituents include voters who might be impacted by the route of the Atlantic Coast Pipeline, a 550-mile interstate natural gas pipeline that would be a joint venture of Dominion, Duke Energy and others.

He has filed two bills that target the 2004 law. One would repeal it. The other would require that a local governing body express support for a proposed natural gas infrastructure project before a natural gas company could cite the law to access private property without permission. The existing law specifies a process for notifying landowners before coming on their property without consent.

Sen. Creigh Deeds, D-Bath County, was one of only four senators who voted against the 2004 bill. He said he will support Hanger’s effort to repeal it.

“I thought then and I think even more now that it’s unconstitutional,” Deeds said.

Hanger voted for the 2004 bill. He said Wednesday that he had not then envisioned the current circumstances of its use to support ambitious pipeline projects that would travel across hundreds of miles of private property.

Hanger said he believes the backers of the transmission pipeline projects create problems for themselves by citing the 2004 law to access private property without consent.

“It is actually working against them in terms of community goodwill,” he said.

Instead, the companies should approach property owners with hats in hand, Hanger said.

Shining light on the process

Hanger is among other members of the General Assembly who have filed bills tied to natural gas infrastructure projects after months of widespread rumpus about the proposed Atlantic Coast Pipeline and the Mountain Valley Pipeline, a separate but similar natural gas project that would impact property owners in West Virginia as well as in Giles, Montgomery, Roanoke, Franklin and Pittsylvania counties.

Each project would transport natural gas from West Virginia at high pressure in a 42-inch diameter buried pipeline. The Federal Energy Regulatory Commission is already involved in reviewing the proposed projects. If FERC ultimately grants the certificate necessary for construction to proceed, the pipeline companies will have access to eminent domain to buy rights-of-way if negotiations with property owners fail to identify an acceptable purchase price.

Del. Dickie Bell, R-Staunton, and Hanger have introduced legislation in the House of Delegates and Senate that would make utilities subject to the provisions of the Virginia Freedom of Information Act for any activity for which they exercise the power of eminent domain.

In an email, Bell said he introduced the bill because he believes the use of eminent domain by utilities instead of government ought to be open to public review.

“While this legislation doesn’t prevent the utility companies from utilizing eminent domain, it is a step to ensure that the process is more transparent,” Bell said.

Jeremy Hopkins is a lawyer with Norfolk-based Waldo and Lyle, a firm that specializes in representing property owners in eminent domain cases. He expressed support this week for the public disclosure bills.

“Private parties that are authorized to exercise immense governmental powers, such as eminent domain, should be subject to the disclosure laws when exercising such power,” Hopkins said. “No party should be able to exercise governmental power in darkness.”

Jim Norvelle, a spokesman for the Atlantic Coast Pipeline, said the company had no comment about the bills filed by Hanger and Bell.

Natalie Cox, a spokeswoman for Mountain Valley Pipeline, shared the company’s response in an email.

“We are closely monitoring all legislation related to natural gas pipelines,” Cox said. “We are confident that members of the Virginia General Assembly and Governor McAuliffe understand the critical importance of expanding natural gas infrastructure in the commonwealth to spur economic development in under-served areas.”

Cox quoted from McAuliffe’s 2014 Virginia Energy Plan: “In many areas of Virginia, access to natural gas can mean the difference between a growing and vibrant economic base and one of stagnation.”

Some officials in Franklin County, which is being considered as a route for the Mountain Valley Pipeline, have expressed interest in gaining access to natural gas by tapping into the high-pressure transmission pipeline — a process that can be expensive and complex.

Constitutionality debated

Meanwhile, pipeline opponents and some property rights advocates have found common ground in the campaign to repeal or modify the 2004 law. They say pipeline companies should not have access to private property until granted the certificate from FERC that greenlights pipeline construction and the use of eminent domain.

The constitutionality of the 2004 law is being challenged by legal action filed in federal and state court. The litigation notes that the Virginia Constitution was amended in 2012 to strengthen the private property rights of Virginians.

The amendment 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.”

But the amendment also describes exceptions: “A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services.”

The office of Attorney General Mark Herring filed a response this week to the federal lawsuit challenging the law. The response contends the law is not unconstitutional.

Atlantic Coast Pipeline has asked state courts to support the company’s right to enter private property for surveying without an owner’s consent. A related motion states that if Atlantic Coast Pipeline “is unable to immediately enter the property … timely construction of the project will be jeopardized and the public interest in expanding natural gas transmission capabilities will be negatively affected.”

The phrase “public interest” appears in two other natural gas-related bills filed in the General Assembly. This legislation would provide a funding mechanism that would allow natural gas companies to expand intrastate infrastructure by adding a surcharge to be paid by the new customers being served.

The bills, one in the House and one in the Senate, include a statement that has caused alarm in some quarters: “Further, it is in the public interest to expand, improve, and increase the reliability of Virginia’s energy infrastructure by allowing Virginia’s natural gas utilities to approach expansion of intrastate infrastructure into unserved and under-served areas on a more proactive basis.”

Hopkins shared his take on the broad scope of the “public interest” wording in those bills.

“A blanket legislative declaration is not positive but utilities already fought for and received blanket carve-out provisions under current law,” he said.

Deeds and others have decried the political clout employed by some public utilities in Virginia.

“Utilities generally get their way,” Deeds said. “Maybe you’ve noticed that over the years.”

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