RICHMOND — An 83-year-old widow’s appeal of Virginia’s controversial pipeline survey law will come before the state’s highest court to test a constitutional amendment approved by voters almost four years ago to protect private property rights.
The Supreme Court of Virginia agreed recently to hear an appeal of the 2004 survey law by Hazel F. Palmer, whose Blue Ridge mountain property in Augusta County lies in the path of the proposed Atlantic Coast Pipeline, where it would tunnel beneath the Appalachian Trail into Nelson County near the entrance to Wintergreen Resort.
The court declined earlier this year to hear the appeal of Giles County landowners seeking to block surveyors for the proposed Mountain Valley Pipeline from entering their properties, and a U.S. District judge dismissed two appeals of the survey law’s constitutionality a year ago.
But Palmer’s lawyer said the state Supreme Court’s decision to hear her case presents the first opportunity for the justices to determine how to interpret and apply property rights protections in the amended Section 11 of the Bill of Rights in the Constitution of Virginia. Voters in a 2012 referendum approved a change that enshrined protection of private property from seizure for private gain as a fundamental right.
“This is a huge deal,” said Henry E. “Hank” Howell III, a Norfolk attorney whose father and namesake built a political reputation as a state senator, lieutenant governor and a gubernatorial candidate by challenging the Virginia Electric & Power Co., owned by Dominion, now the lead partner in the pipeline company.
A Dominion spokesman for the Atlantic Coast Pipeline expressed confidence Wednesday that Virginia’s Supreme Court will uphold the constitutionality of the state law, which allows natural gas companies to enter private property without landowner permission to survey potential pipeline routes.
“Every state and federal court that’s ruled on this issue, including the Augusta County Circuit Court, has affirmed our right to perform the surveys and has upheld the constitutionality of the state survey law,” Aaron Ruby said. “We’re confident the Virginia Supreme Court will uphold the circuit court’s ruling.”
Atlantic Coast Pipeline, a Delaware limited liability company that also includes Duke Energy, Southern Company Gas and Piedmont Natural Gas, is awaiting approval of the $5 billion interstate pipeline by the Federal Energy Regulatory Commission, but it announced Wednesday that it has signed a contract with a joint venture of four companies to build the 600-mile project.
Ruby called the contract with Spring Ridge Constructors LLC “a significant milestone” in the effort to build the pipeline from the Marcellus shale fields of West Virginia through the heart of Virginia to the southeastern coast and into North Carolina.
“There are a lot of steps we have to take to be prepared for when we receive the approval to build the pipeline, which we expect we will,” he said.
The pipeline company confirmed Wednesday that it now expects to complete the project in “late 2019,” a year later than originally scheduled. The FERC announced last month that it expects to issue the final environmental impact statement for the project by June 30 and make a decision by Sept. 28, 2017.
However, the pipeline company has moved ahead aggressively in planning to build the pipeline. It has committed $400 million to manufacture the steel pipe, which it has begun storing in leased yards along the proposed route. The members of the joint venture that would act as lead construction contractor are: Price Gregory International Inc., an affiliate of Quanta Services Inc.; U.S. Pipeline Inc.; SMPC, LLC; and Rockford Corp., an affiliate of Primoris Services Corp.
“We selected the best of the best,” Ruby said.
All for show?
But the company’s announcement rankled Jon Ansell, chairman of Friends of Wintergreen, who called it “a mockery of the FERC evaluation process.”
“There are still many questions, concerns and fundamental issues that need to be addressed in the federal review and approval/disapproval process,” Ansell said in an email message. “Yet Dominion publicly boasts it has already ordered the steel and selected the contractors. Makes one wonder if the system’s rigged and this FERC process is all for show.”
Palmer’s property lies just over the mountain from Wintergreen and would be directly affected by the company’s plan to drill horizontally about 4,000 feet through the mountain to avoid the Appalachian Trail and Blue Ridge Parkway. The entrance hole for the tunnel would begin on her land, which would serve as staging area for the drilling.
“I am the fourth generation to own this property,” she wrote in a letter published by the Staunton News Leader on Wednesday. “It was the home place of my maternal great-grandparents, who purchased the property in 1880. My family has taken care of the property with great pride.”
“My heart is broken that I am forced to give up land for a private company to install a pipeline. This should not happen in the United States of America.”
The pipeline company cannot use eminent domain to take any of Palmer’s property until the FERC issues a certificate of public need for the project.
“Eventually, she will be compensated for the loss of that property,” Ruby said. “We will compensate every single landowner who will be impacted by the project, period. We will compensate them fairly.”
But Palmer’s appeal to Virginia’s Supreme Court contends that the surveying of the property against her will also represents a “taking” that violates her fundamental right to protection under Article 1, Section 11 of the state constitution.
“It rises and falls on whether there is a taking (of) or damage to a property right,” Howell said in an interview Wednesday.
Ruby said the federal and state judges all have ruled that the surveys “are not a taking.” He called the surveying process “minimally invasive” and necessary to determine the least damaging route for the pipeline, as required by FERC.
But Palmer’s appeal said the process involves flagging the route through the property and surveying it, collecting soil samples by augur or other methods, hand-digging holes to look for possible cultural artifacts, and probing for soil resistance every 500 feet.
“All told, five crews totaling around 20 people would enter the property over Ms. Palmer’s objections,” the appeal states.
Applying the law
The appeal also contends that the state statute does not apply to what it calls “foreign companies” that are not certified as public service companies in Virginia, such as electric utilities and natural gas distributors. The statute is part of the state code for such companies, not corporations or other outside entities, it notes.
Atlantic Coast Pipeline’s lawyers responded that the clear legislative intent of the statute was to enable interstate natural gas companies to enter properties to survey without landowner permission, but only after following specific notice requirements. The law was sponsored in 2004 by Sen. Frank Wagner, R-Virginia Beach, who is running for governor next year and has been a reliable ally of Dominion in the General Assembly.
The response quotes extensively from a federal judge’s ruling last year against two lawsuits challenging the constitutionality of the statute. One, filed by a group of Nelson landowners whose property would have been affected by the pipeline’s original route, is scheduled for hearing late next month by the 4th Circuit U.S. Court of Appeals.
The company’s lawyers also cite rulings by lower court judges in Giles, Buckingham, Nelson and Augusta that upheld the statute and the right to enter landowners’ property without their consent to conduct the surveys.
However, Howell questioned “a U.S. district court judge’s decision in interpreting Virginia law, when the Virginia Supreme Court has never interpreted it.”