Supreme Court of Virginia hands pipeline foes small victory, but project rolls on

By Gregory S. Schneider, The Washington Post – 7/13/2017

RICHMOND — The Supreme Court of Virginia ruled Thursday on two cases related to the controversial Atlantic Coast Pipeline, handing opponents a minor victory but otherwise leaving the huge project unscathed.

The court found in favor of a small group of landowners in Buckingham County who said pipeline surveyors had not provided adequate notice before entering their property. Survey crews have since changed their practice, though, to give more specific information about timing.

The other case was potentially far more sweeping, as a landowner challenged whether an out-of-state utility has the right to enter property for surveys or to seize property under eminent domain.

Although the natural gas pipeline project is largely controlled by Richmond-based Dominion Energy, the partnership that is building it is registered in Delaware. The court ruled that state law permits the survey work but said the plaintiffs had waited too late in the legal process to raise the issue of eminent domain, or property seizure.

One expert said that could leave the door open for someone to pursue the eminent domain question, because the state constitution contains language prohibiting any outside company from exercising “the powers or functions of a public service enterprise.”

“In theory, at least, that would prevent [a Delaware corporation] from taking the land to build the pipeline on,” said Virginia Beach lawyer L. Steven Emmert, publisher of Virginia Appellate News and Analysis.

The problem in this case, he said, is that the plaintiff did not raise the eminent domain argument in the first stage of the case but waited until later. The court said Thursday that that was outside the scope of its review — but in a pointed way that Emmert took as a hint.

“If another landowner comes along and grabs this idea and presents it in a timely way,” the court might take it up, Emmert said.

The Atlantic Coast Pipeline is intended to bring fracked natural gas on a 550-mile route from West Virginia through Virginia and into North Carolina, with an extension into Hampton Roads.

Dominion Energy spokesman Aaron Ruby applauded the court’s rulings Thursday, saying they had “upheld the constitutionality of Virginia’s survey law and reaffirmed our right to perform these surveys.”

He noted that the company had “proactively addressed the issue of landowner notifications by revising our notices to include specific dates of entry before surveying these properties. Going forward, we’ll continue our company’s policy of providing landowners with specific dates of entry prior to surveying.”

Lawyers for the plaintiffs in both of the cases decided on Thursday could not immediately be reached for comment.

The pipeline has stirred passionate protests in rural parts of the state, mostly in the central and southern regions, over environmental concerns and property rights issues.

Another similar project with different owners — the Mountain Valley Pipeline — is underway simultaneously in the southwestern part of the state.

Together, the pipelines have been a hot-button issue in the Virginia governor’s race this year. During the primaries, Democrat Tom Perriello drew considerable support in those parts of the state by being the only candidate of either party clearly opposed to the pipelines.

But Perriello lost the nomination to Lt. Gov. Ralph Northam, who has declined to take a clear position on the projects and said only that they should be subject to strict environmental review.

Republican nominee Ed Gillespie supports the pipelines and has chided Northam for not being more assertive.

The issue flared up again Thursday when state Republicans claimed that Northam had finally endorsed the pipelines on a morning radio show. But Northam’s campaign pointed out that what he actually said to conservative radio host John Fredericks is the same thing he has been saying all along.

When Fredericks asked whether Northam would support the project if federal authorities give it final approval, he said: “Yeah, sure, and you know again the permitting process is . . . if it’s done safely and responsibly, then it’s going to move forward.”

Campaign spokesman David Turner said later that Northam “has always said he wants [the environmental] evaluation to be rigorous, based in science, transparent, and to make sure that Virginia takes care of people’s property rights.”