A welcome pipeline reprieve

Published 10:33 pm Friday, April 10, 2015

A ruling in Suffolk Circuit Court last month has resulted in a reprieve for opponents of a proposed gas pipeline that would run from Harrison County, W.Va., to Robeson County, N.C., with a spur through Suffolk.

Fifth Circuit Judge Carl Eason ruled that surveyors representing the Atlantic Coast Pipeline did not have a right to trespass on private property to mark out and assess potential routes, because the letters sent to property owners as notification of their activities were sent under the name of Dominion Transmission Inc., the company that had originally planned the pipeline work.

Virginia’s so-called “right to trespass law” arguably gives utility companies the right to access private property, even over the objections of landowners, in order to accomplish such surveys. There is some question whether that law is invalidated by the commonwealth’s 2012 constitutional amendment regarding eminent domain, which roughly states that the government’s right to eminent domain cannot be used to enrich private companies. The argument still in play is whether the government’s allowing of essentially unfettered access to private property by a utility constitutes a “taking” of that property on behalf of a commercial entity.

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Eason’s ruling was a narrow one, standing on the technicality of incorrect notification, so the constitutional issue remains undecided.

But there’s a very good chance the matter will wind up in court again. Atlantic Coast Pipeline officials have withdrawn more than 100 lawsuits against property owners who have denied them access (including two in Suffolk), but the narrow court ruling means the company has only to issue notification under the correct name in order to proceed with its work again. Assuming the same property owners mount the same resistance and then are willing to go to court to try to protect their rights, the circuit court in Suffolk or some other Virginia affected municipality will then likely find itself ruling on the more complex constitutional matter.

The reprieve likely will be a brief one for pipeline opponents, as the utility consortium now comprising Dominion, Duke Energy, Piedmont Natural Gas and AGL Resources has expressed a firm desire to proceed. “If the landowners do not allow surveys once they are properly notified by the ACP, the company may start legal proceedings again,” Jim Norvelle, Dominion’s director of communications, wrote in response to questions from the Suffolk News-Herald recently.

It’s clear the pipeline matter is far from settled, and pipeline opponents easily could wind up holding the short end of the stick after a court finally rules on the constitutional matters at hand. Still, the delay gives property owners a chance to shore up their case against the pipeline, and it gives those who might be undecided about it a chance to make up their minds. In that sense, it’s a welcome reprieve.