“Eminent Domain” Taking of Property for Private Gain Should be Illegal

Landowners ask U.S. Supreme Court to bar taking their property for pipeline

From an Article by Laurence Hammack, Roanoke Times, July 3, 2019

A group of Southwest Virginia landowners whose property was taken for a natural gas pipeline is asking the U.S. Supreme Court to strike down the use of eminent domain.

The appeal challenges a decision by a Roanoke-based federal judge who gave the Mountain Valley Pipeline immediate possession of about 300 disputed parcels in a decision that cleared the way for tree-cutting to start last year.

Judge Elizabeth Dillon’s ruling applied to the Virginia portion of the pipeline. The Supreme Court is being asked to review her decision along with that of a West Virginia federal judge who made a similar decision for the section of the 303-mile pipeline that passes through his state.

A decision on whether the high court will consider the appeal is expected in the fall. The court hears oral arguments and renders a decision in only about 1% of the approximately 8,000 cases filed each year. At least two other appeals of eminent domain decisions involving pipelines didn’t make the cut this year.

Christopher Johns, an Austin, Texas, attorney who represents the petitioners, said this case is different from many previous attempts because it involves a pipeline that has not been completed.

“I think judges are pragmatists, and they probably would not be super-excited about taking a case where the pipeline is operational,” Johns said.

Although work on the $5 billion project began in February 2018, delays caused by violations of environmental regulations and the loss of two sets of key permits have pushed the completion date back until the middle of next year.

Karolyn Givens, whose Giles County farm will be crossed by the 42-inch diameter buried pipe, is the lead petitioner in an appeal filed Wednesday by about a dozen landowners.

Since work on the pipeline started, Givens “walks along that path of destruction,” the petition states. “She sees barren stretches of earth, car-sized boulders, newly exposed caves and sinkholes, mangled fences, and rust-colored stains of erosion running down her hillside.”

The appeal challenges a version of eminent domain — which allows the taking of private property for public use — that has been called “take first, pay later.”

Dillon’s ruling, which was upheld by the 4th U.S. Circuit Court of Appeals, gave Mountain Valley control of easements on the land it wanted before a decision was reached on how much the landowners should be paid.

Decisions like that “let MVP cut down trees and bulldoze land before anyone knows whether the pipeline will ever be built,” the appeal states.

The 4th Circuit and other appellate courts have allowed preliminary injunctions like Dillon’s under the assumption that the companies eventually will get the land.

But timing matters, the appeal argues — just as a person with a lease starting next month has no right to the property today.

Lawyers for the company have argued in court papers that the Natural Gas Act gave it condemnation power to ensure that “customers would have access to an adequate supply of natural gas at reasonable prices.”

Since Mountain Valley sought the land through eminent domain, about 90% of the owners have reached an agreement with the company over how much money they should receive. Jury trials in the remaining cases have been scheduled through the rest of this year and into 2020.