FERC use of eminent domain violates private property rights?
The case deals with eminent domain and the Natural Gas Act of 1938
From an Article by Shayne Dwyer, WSLS News 10, Roanoke, VA, December 26, 2018
ROANOKE, Va – A lawsuit involving the Mountain Valley Pipeline may be headed to our nation’s highest court. Wednesday, Virginia landowners filed a reply arguing their case does have merit to be heard after non-decisions by lower courts. They want to challenge the constitutionality of eminent domain before the United States Supreme Court, arguing the system is flawed and needs re-working. It even has the backing of some conservative legal scholars.
The Natural Gas Act of 1938 is the groundwork for what we now have today, the Federal Energy Regulatory Commission, otherwise known as FERC. These are the folks that authorized the Mountain Valley Pipeline to use eminent domain to build on private land.
Now, the Supreme Court is deciding whether or not they’ll allow Roanoke lawyers to argue why they say the 80-year-old law is unconstitutional, which could change the rules for pipelines across the country. And in the briefing submitted Wednesday, arguing FERC and the private company should have never been given that power to begin with.
Pipeline fighters have been giving it their all in the last three years, but their biggest accomplishments may be just around the corner. There’s a real possibility the nine justices of the United States Supreme Court may soon be looking into the Mountain Valley Pipeline.
“The case deals with two primary issues, both of which are essential to the preservation of individual liberty,” Gentry Locke lawyer Mia Yugo said. “The first issue is the private non-delegation doctrine and the second issue is the right to private property.”
Yugo, alongside Tom Bondurant and other colleagues at Gentry Locke, are petitioning the United States Supreme Court to hear a case on whether the use of eminent domain for private pipeline companies is legal, arguing 80 years ago, Congress made a mistake with the Natural Gas Act of 1938.
“So just because Congress passes a statute, doesn’t mean that Congress gets it right,” Yugo said. “And when they don’t get it right the individuals or really anybody can go into court, if you have standing, can go into court and challenge that statute as unconstitutional and that’s precisely what we’ve done.”
The Mountain Valley Pipeline running from West Virginia, through Virginia, and onto North Carolina is one of a number of projects planned and under construction across the country. For that reason, local landowners feel this case has national appeal and has the makings of a landmark case affecting all Americans.
“This is about the Constitution, this has relevance for all of us, every single citizen because none of us are safe when this is going on and the court absolutely needs to hear us,” Preserve Montgomery County Chairwoman Lynda Majors said.
In a surprise to some, the Rutherford Institute, a well known conservative think thank, filed a friend of the court brief in favor of the case being heard before the Supreme Court, arguing that the court could do everyone a favor by letting pipeline fighters have their day before the bench.
“Not only is private property at stake, but our constitution, the Fifth Amendment says very clearly that you can not take someone’s property without just compensation, you’re not seeing that here,” Rutherford Institute founder John Whitehead said.
In responses last week, MVP argued administrative reviews took care of this situation at the FERC level and did not respond to our request for comment. Landowners argue that that claim is invalid because FERC should have never been given the power to dole out to MVP in the first place.
“The core question here is whether the Constitution of the United States allows a profit-seeking private entity to take land from an individual landowner for the purposes of private gain, private enterprise or private benefit,” Yugo said.
The Supreme Court is expected to go to conference and make a decision on whether or not it will hear the case in the coming weeks. If accepted, it could be argued sometime in late 2019 or early 2020.
MVP and FERC responses were not required to be filed and pipeline fighters feel the fact that they did respond underscores the fact that this is a national issue. They also remain frustrated with the timeline of all this and delays issues by the court, because every day they wait to argue is another day that construction can continue.
“Nobody else has challenged the Natural Gas Act as an unconstitutional delegation of power and so this makes this particular case not just a local case, but a national case of national importance and it will affect every American in every part of this great country,” Yugo said.
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