Stop Eminent Domain Abuse
From an Article by Ken Ward Jr., Charleston Gazette Mail , November 2, 2017
As the state Department of Environmental Protection paves the way for the project, developers of the proposed Mountain Valley Pipeline are suing hundreds of landowners in West Virginia and Virginia to gain easements through eminent domain rights granted to MVP by a federal regulatory approval.
MVP lawyers have filed complaints in U.S. District Court in Charleston and Roanoke to obtain through condemnation the rights of way for the 300-mile natural gas pipeline from Wetzel County, West Virginia, to Pittsylvania County, Virginia.
The Virginia complaint lists more than 300 separate pieces of property — with the property descriptions taking up 192 pages of a 196-page complaint — and the West Virginia filing lists more than 140 separate property parcels.
“Condemnation is necessary because MVP has been unable to negotiate mutually agreeable easement agreements with the landowners,” the MVP lawyers said in both of their complaints.
In courts in both West Virginia and Virginia, MVP lawyers are seeking expedited handling of their complaints. In the West Virginia case, MVP asked U.S. District Judge John T. Copenhaver Jr. to schedule a hearing on or before December 13th so it can access properties by February and so the pipeline can be built and in operation by November or December of 2018.
Lawyers for the company argue that “delaying access to the easements condemned across the defendants’ properties will cause irreparable harm to the public and to MVP.”
The MVP legal filings say the company is entitled to “permanent and exclusive rights-of-way of 50 feet in width” for the pipeline, as well as ingress and egress with permanent and temporary roads “which MVP may construct, improve, maintain, or replace as necessary or convenient,” and the “right to clear trees, brush, or other vegetation as necessary or convenient for the safe and efficient construction, operation, or maintenance of the pipeline or access roads.”
Also, according to the MVP filings, the easements prohibit the landowners from changing the depth of cover over the pipeline, putting any temporary or permanent structures — including sidewalks, trees, or sheds — on the easements, or storing any materials of any kind on the rights-of-way.
MVP has been somewhat stymied by a November 2016 state Supreme Court ruling that said West Virginia law would not allow the company to use state eminent domain to conduct pipeline survey work without permission from landowners. Earlier this year, the natural gas industry asked the Republican-controlled Legislature to pass a bill to overturn that Supreme Court ruling, but the measure never made it out of committee in the House of Delegates.
But approval last month by the Federal Energy Regulatory Commission of a certificate of “public convenience and necessity” gave MVP federal eminent domain powers to take private property for the project, one of multiple pipelines proposed across Appalachia as part of the rush to take advantage of the natural gas boom in the Marcellus and Utica shale region. And the decision by DEP Secretary Austin Caperton on Wednesday to waive West Virginia’s authority over the water quality impacts of the FERC certificate removed one of the potential stumbling blocks for MVP in quickly winning its lawsuits against state landowners.
In an order entered Wednesday, Copenhaver expressed concern about the “vast number of defendants” in the MVP case, and ordered the company to submit by November 8th a report detailing how each of the landowners had been served with the lawsuit. The judge said he would not set a hearing until he was “assured” that the service had been handled properly.
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