Court won’t permit pipeline surveys without landowners’ OK

December 10, 2016
Shale Play

MORGANTOWN, W.Va. (AP) - The West Virginia Supreme Court has refused to let the developer of a proposed natural gas pipeline survey landowners' property without their permission.

Monroe County Circuit Court Judge Robert Irons ruled in August 2015 that Mountain Valley Pipeline LLC hadn't proved its project would provide sufficient public use to justify entering private property without owners' permission.

The company appealed, arguing the survey work would not be invasive and that the pipeline itself would benefit West Virginians. Two landowners, who had sued the company, countered that surveyors lacking permission violate their basic property rights, and the pipeline would largely benefit only the private company and its investors.

Article Photos

The 300-mile pipeline would transport natural gas from Wetzel County, West Virginia, to another pipeline in Pittsylvania County, Virginia.

Four justices upheld the lower court ruling Tuesday.

"MVP has been unable to identify even a single West Virginia consumer, or a West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit from MVP's pipeline," Justice Robin Jean Davis wrote. The state can only authorize the exercise of eminent domain ? the taking of private property ? when it's done for the benefit of West Virginians. And a private company can only enter and survey private land it intends to take when it has been given the power of eminent domain, she wrote.

Their ruling doesn't doom the pipeline, Davis wrote. The company ultimately plans to use federal law to get access to the property it needs to survey and build the pipeline through a Federal Energy Regulatory Commission certification, which it has requested.

Justices Brent Benjamin and Margaret Workman joined in the majority ruling. Justice Allen Loughry wrote a concurring opinion.

Chief Justice Menis Ketchum dissented. The laws enacted by West Virginia's legislature do allow private, for-profit corporations to take someone's land by eminent domain, and the majority "narrowly" defined the term "public use" that applies, he wrote.

It's "undisputed" that 95 percent of the gas to flow through the pipeline will come from north-central West Virginia, that many residents will get royalty payments, the state will collect more taxes, pipeline workers will benefit, and existing pipelines are already at capacity, Ketchum wrote.

Derek Teaney, who represented Bryan and Doris McCurdy in their lawsuit, said Wednesday that it's a landmark ruling under state statutes, but with an underlying fundamental property right protected by the constitution. The McCurdys own about 185 acres in Monroe County on the pipeline's proposed route. Another court case indicates there are about 75 to 100 other landowners who refused to let company surveyors onto their property, he said.

About 95 percent of the benefit would go to the pipeline company and its affiliates, said Teaney, an attorney with Appalachian Mountain Advocates. Even if you include residents getting royalties, that's still a smaller group than the landowners burdened by the pipeline, he said.

Mountain Valley Pipeline doesn't expect the state court ruling to delay the FERC approval that would provide rights to conclude necessary surveying or its project schedule, spokeswoman Natalie Cox said. Its schedule shows construction targeted to start next June with service in late 2018. It has finished about 98 percent of the West Virginia surveying and 96 percent in Virginia, she said.