By Rachael Smith, News & Advance
The fate of a lawsuit filed by five Nelson County residents against Dominion Transmission remains unknown after a Thursday morning hearing in U.S. District Court in Harrisonburg.
The lawsuit, filed in September, asks the court to declare unconstitutional a Virginia statute relevant to the Atlantic Coast Pipeline. Section 56-49.01 of the Virginia Code allows natural gas companies to survey private property as long as previous notification has been served.
Dominion asked the court in November to dismiss the suit, and that request is what Thursday’s arguments focused on.
On one side of the court room sat mostly Dominion representatives scattered in the pews, on the opposite side sat Nelson County residents who filled every inch of the section.
Judge Michael Urbanski heard arguments from Dominion to dismiss the lawsuit as well as from the plaintiffs who brought forth the suit.
After Nelson residents filed the lawsuit, Dominion Transmission responded in November asking the U.S. District Court in Charlottesville to dismiss the lawsuit.
“If we didn’t think the case had merit, we would not have filed it,” plaintiff and Afton resident Charlotte Rea said before the hearing. “I have no doubt that the law is unconstitutional.”
The case originally was filed in Charlottesville. For reasons undisclosed, the case was transferred to Urbanski, who normally sits in Roanoke but also covers the Harrisonburg courthouse. The case remains a Charlottesville case.
John Wilburn, of McGuire Woods, represented Dominion and Neal Walters, of Scott/Kroner PLC in Charlottesville, represented the residents.
Virginia Attorney General Mark Herring filed an intervener brief in defense of the Virginia Code and has supported Dominion’s motion to dismiss. Stuart Raphael represented the Attorney General on Thursday.
Wilburn argued no Virginia court has addressed the statute and there has been no case where a similar statute has been declared unconstitutional.
“Why shouldn’t [landowners] be able to keep people off their property? It’s their property,” Urbanski said. “This isn’t a fire and safety issue, this is not a police issue. This is someone trying to make money by putting a pipeline in.”
Wilburn argued all of these rights are authorized by the statute to allow natural gas companies onto private property.
Urbanski wondered why Dominion could not indicate exactly where the pipeline would be going through landowner’s properties.
“With the absence of these facts, can I reach a motion to dismiss?” Urbanski said. “You have to know in some general sense of where it is going, so why not put it in the notice? Shouldn’t you have done that?”
Wilburn said that is why Dominion needs to survey to locate historical and environmental landmarks. He also argued Dominion has held several open houses and has offered to meet with landowners time after time. It’s not an issue of the wetlands or landmarks, he said, but that these landowners do not ever want a pipeline running through their property.
Urbanski asked Walters if Dominion’s only intention at this time was to survey, he couldn’t understand how that is a “taking” of land. The judge said common law always has allowed it and Dominion needs to survey to see if a pipeline is suitable.
“The purpose of the surveying is to see if it’s ever going to work,” he said.
Dominion is not allowed to bring any vehicles or power tools onto the land while surveying.
“This is a statute that consists with the Commonwealth,” Urbanski said. “My question is this, Mr. Walters, aren’t you asking me to break new ground?”
Walters argued Dominion is condemning the property just by being there without permission.
Jim Norvelle, director of Communications at Dominion, said the company has followed every procedure laid out in the state code to survey the best route with the least impact to the environment, historic and cultural resources and the plaintiffs continuously have denied permission for Dominion to survey their properties for the pipeline.
“Both sides have done a masterful job of looking at the law…each of you have given me things to think about and cases to look at,” Urbanski said.
The judge did not decide today but will write a written opinion on his decision.
“I’m not sure how long it will take but I will devote substantial effort … that I get it right,” he said. “I have spent a lot of time on this case and I’m giving it the importance it deserves. It’s important to the Commonwealth, to Dominion and to landowners.