Landowners facing irreparable harm from MVP, lawyers argue
From an Article by Kate Mishkin, Charleston Gazette-Mail, September 26, 2018
Mountain Valley Pipeline never sufficiently showed that it would face harm without access to landowners’ properties, lawyers for those landowners told the 4th Circuit Court of Appeals in Richmond, Virginia, on Tuesday.
They also said that, as court battles over the pipeline continue to play out, the landowners are facing irreparable harm. Oral arguments were available on audio recording Wednesday.
The case challenges the preliminary injunctions issued by three district judges that granted Mountain Valley Pipeline immediate possession in condemnation proceedings. It’s the first of five pipeline hearings playing out in Richmond this week. On Friday, a panel of judges will hear arguments in two cases challenging permits issued to the Mountain Valley Pipeline, and two challenging the Atlantic Coast Pipeline.
On Tuesday, though, lawyers challenged the injunction granted to developers, and their ability to take property without immediately compensating landowners. “You’d better believe losing possession is important to these landowners,” Christopher Johns, a lawyer for the landowners, said. “It’s substantive to them, and it makes a difference to them.”
Allowing early possession through a preliminary injunction through condemnation under the Natural Gas Act is far-reaching and unconstitutional, Johns argued. And Mountain Valley Pipeline’s claims of irreparable harm without access to land were only possible, not inevitable, said Derek Teaney, an Appalachian Mountain Advocates lawyer.
Mountain Valley Pipeline had said it would face economic loss and lose its Federal Energy Regulatory Commission certificate without speedy access to properties, Teaney said. The project would span 300 miles from Northern West Virginia to Southwest Virginia.
Initial plans said the project would cost $3.7 billion and be completed by the end of 2018. But after a panel of judges on the 4th Circuit said the federal government had skirted rules when it approved the pipeline, and FERC halted the project. Developers say that halt pushed completion into 2019 and caused the price of the project to climb to $4.6 billion.
That decision was made by Judges Stephanie Thacker and William Traxler, and Chief Judge Roger Gregory. On Tuesday, Gregory and Judges James A. Wynn Jr. and Pamela Harris heard arguments. Gregory, though, questioned the general merits of eminent domain, calling it one of the “remnants of monarchy.”
“When it comes to condemnation, condemnation is the death penalty, in terms of property. We talk about life, liberty and property,” he said. “That’s the highest form of punishment. It’s death penalty, because I’m going to take from you what you own, because I’m the monarchy.”
Wade Massie, a lawyer for Mountain Valley Pipeline, maintained that developers had followed all the rules in gaining eminent domain. “We have a right to condemn now,” he said.
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