WV Supreme Court ruled on Tuesday “private taking for private use” prohibited

Greenbrier_River-27527In a long-awaited ruling, the West Virginia Supreme Court upheld an August 2015 circuit court judge’s decision that allowing a pipeline company onto private property without permission violates a basic right of all West Virginians.
On Tuesday, November 15, Justice Robin Jean Davis, speaking for the majority, said there was no proof that the Mountain Valley Pipeline (MVP) project would serve any “public use,” a requirement under state law for developers to use eminent domain to force landowners to allow such surveys, reports wvgazette-mail.
At issue before the court was whether a West Virginia law that allows private companies to use eminent domain to take property – or survey property without owner permission – only if plans for the property by those private companies involve a specific “public use.”
“Thus, this case represents exactly the type of private taking for private use that is prohibited,” Davis wrote in a 31-page opinion.
MVP officials assert that nearly all of the gas to be transported will be produced in West Virginia, and that the pipeline “will provide needed capacity for additional development of natural gas in West Virginia.” But, Davis said, no agreements have been reached that would provide gas to any consumers in the state, and no “definitive evidence” that any non-MVP affiliated gas producers would benefit from the pipeline, either.
The MVP is a $3.5 billion, 301-mile pipeline that will run from Wetzel County to the Transco Pipeline in Pittsylvania, VA. The project is being built by EQT, NextEra Energy and several other partners.
In parts of rural West Virginia there is a growing concern about the impact on the environment and on small community life from the MVP project and other natural gas pipeline projects that are at various stages of development. There are currently seven pipeline projects that originate in northern West Virginia and would transport gas produced by the region’s Marcellus Shale boom.
It turns out, there is a catch. In order to build the pipeline, you first have to survey the route.
Landowners in both West Virginia and Virginia have resisted surveyors’ access to their lands, forcing the MVP project to go to court to try to force recalcitrant landowners to allow a survey. In April 2015, Mountain Valley sued landowners Bryan and Doris McCurdy for refusing survey teams’ access to their Monroe County property. By August 2015, the suit came before Monroe County Circuit Court Judge Robert Irons, who ruled that pipeline officials hadn’t established a public benefit in West Virginia to justify entering private property without an owner’s consent. MVP objected and in October, attorney Charles Piccirillo asked the West Virginia Supreme Court to overturn the lower court’s ruling, arguing that the survey work would not be invasive. But environmental attorney Derek Teaney, Senior Attorney with Appalachian Mountain Advocates, representing the McCurdys, argued that surveyors entering private land would be violating a basic right.
On Tuesday, the majority on the supreme court agreed and upheld Judge Irons’ initial ruling.
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Earlier this year, pipeline promoters were concerned enough about the [eminent domain] law that they tried unsuccessfully during the legislative session to get it changed. The resultant bill (SB 596) would allow the companies to survey the property before the courts determine whether there is a “public use” for the specific pipeline. It is the Legislature’s latest effort to boost the state’s gas industry, but at the expense of landowners, reports the Charleston Gazette-Mail.
Senator Ron Miller, D-Greenbrier, said he had a problem with the Legislature changing the law explicitly in response to the circuit judge’s ruling. He said many of his constituents were farmers who lived on land passed down by their ancestors. Miller proposed an amendment that would have changed only one word, but would have dramatically altered the effect of the bill.
“What the amendment did was pretty much nullify the bill,” said Dominion Resources lobbyist Bob Orndorff, who was consulted by the legislative committee.
The committee then quickly voted to rescind its approval of Miller’s amendment, and then voted to pass the bill on to the full Senate, where it was rejected the following week on February 29.
The fallout from Miller’s proposal was illustrative of the major role that industry lobbyists often play in the legislative process in West Virginia.
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According to Marcellus Drilling News, this decision by the supreme court sets up a potential “Constitutional crisis.” The MVP project comes under the authority of the federal government, under Federal Energy Regulatory Commission (FERC). Typically, FERC does not grant final approval without seeing the entire route for the pipeline. MVP can’t provide the final, fully fleshed-out route without survey access. If/when FERC approves the project, the project will have the right to use eminent domain and, at that point, can force the landowners to allow access. How does that square with this opinion by the supreme court? The pro-drilling website is calling it “a catch-22 situation.”
“This is a great day for private property rights in West Virginia,” Teaney said, although, he added, his clients have won “just one battle and not the war.”
“This ruling vindicates the rights of landowners in the path of this ill-advised pipeline and shows that private companies cannot bully West Virginians into allowing them onto their property without their permission,” Teaney said.

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