Last week, Virginia’s Supreme Court upheld a state law that allows natural gas companies to survey private property without the owner’s permission for a proposed pipeline, but legal experts say landowners could still block construction as Sandy Hausman reports.
The U.S. Constitution allows governments to take private property for public use if they compensate owners. Utilities are viewed as a public service, but what about a pipeline company? At the not-for-profit Institute of Justice in Washington, attorney Robert McNamara says that is a question for the courts.
“Courts have increasingly expressed a lot of skepticism about this kind of use of eminent domain, and specifically about who gets to use it," he says.
"The Texas Supreme Court, a few years ago, handed down a decision on exactly this question.”
That court said a utility could use eminent domain but only if it met the strict definition of a utility. Another court – this one in Pennsylvania -- ruled against a pipeline company, and a similar case is pending in Iowa. Here in Virginia, the law is clear – pipeline companies can use eminent domain to acquire land for construction, but McNamara says it would be possible to challenge that law on constitutional grounds.
If Virginians want to do that, he adds, they need to move quickly.
“What a lot of companies want is to create sort of a fait accompli where the question being raised in court is you can either waste the millions or billions of dollars and effort we’ve already put into construction we’ve done on the land we have and let this person keep their property, or you can just let the inevitable momentum of this project roll forward.”
Should efforts to prevent the Atlantic Coast Pipeline from taking property fail, there’s another legal argument to be made – that Dominion will violate anti-trust laws if it builds a pipeline for gas it will sell to its own power plants.