In the wake of the gubernatorial election, the developing Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) projects continue to be a major environmental and political controversy as Mountain Valley Pipeline, LLC has now sued over 300 landowners for eminent domain of their properties.
While this lawsuit was not a surprise to Virginia landowners, the sheer volume of those being served is unusual in cases like these, according to Carolyn Elefant, the lead lawyer representing Bold Alliance in the group’s own lawsuit against the Federal Energy Regulatory Commission (FERC), ACP, LLC and MVP, LLC.
“Typically they do sue a lot of people at once,” Elefant said. “What did surprise me is that there were so many people being sued. […] I was also surprised at how quickly MVP brought the lawsuit. It’s not unusual for a company to bring it quickly, I think they brought it just two or three weeks after the [FERC] certificate was issued.”
MVP and ACP hope to gain land to build their pipeline projects using eminent domain, a power to take private property for public use while giving ‘just’ compensation to the original owner. It is normally a power reserved for the federal government, but may be extended to private companies if the project is proven as a public utility and approved by the government.
Usually, once the pipeline undergoes the approval process from the appropriate environmental regulatory groups, such as FERC and the Department of Environmental Quality (DEQ), landowners will settle their claims rather than contest them. In these cases, the pipeline company would need only to sue about 50 people. Elefant predicts that MVP, LLC hopes landowners will settle their cases more quickly so they may begin the construction process.
“The State Water Control board meetings in December are kind of our last option,” said Carolyn Reilly, a landowner and pipeline fighter in the Appalachian branch of Bold Alliance. “I know they do not have enough information to make a decision according to the state standards and laws and regulations under the DEQ to really allow these pipelines to be built. The measure of mitigation is nothing. It’s not going to be enough to protect the endangered species like the Roanoke logperch fish, erosion problems, and providing clean water.”
In this new lawsuit, MVP, LLC is demanding to be able to take landowners’ property through eminent domain while deciding compensation at a later date. It would provide the company with a great deal of leverage, since MVP then has little incentive to negotiate compensation price once the land has been won. Elefant believes their best course of action is to challenge the constitutionality of eminent domain, as well as other issues landowners like Reilly have found.
“The Mountain Valley case is really one of the first cases I’ve seen where there has been this concerted opposition on all fronts–attacking the environmental impacts, attacking whether there’s actually a real need for the project, and attacking whether the use of eminent domain is constitutional and raising all of those issues very early in the process, plus having a majority of landowners actually represented by attorneys when they’re approached by the pipeline,” Elefant explained.
A hearing has been scheduled for December 28, which may result in a rescheduling of the event depending on the number of attendees. In a case with this many people involved, it may take weeks for a court to make any decision.
“The other thing that’s really significant about this case is that in the FERC approval of these pipelines, one of the commissioners dissented,” said Elefant. “She said that she thought these projects were extremely harmful, the need was questionable, and she just didn’t see any basis for finding that they served the public interest.”
Although FERC still approved the project, Elefant noted that she had worked on only one other case in which a FERC commissioner dissented in a pipeline case. She also predicts one of these cases will move to an appeals court, and perhaps the Supreme Court, considering the number of new issues these lawsuits introduce.
“We’re still really focusing on empowering landowners, because this is where the turmoil, the stress, distress of three years worth of this fight is overwhelming,” Reilly said. “The thing that gets me is that landowners didn’t ask for this. We didn’t want fossil fuel infrastructure. It’s so terrifying. I just can’t imagine that the people who were here thousands of years ago, the Native American peoples, what they felt when they weren’t asking to be kicked off of their land, to be killed for their land, to be bought off and silenced.”
Bold Alliance will be hosting a “Water is Life” rally and concert on December 2 at the Virginia State Capitol and The National from 1 p.m. until 4 p.m. preceding a series of final hearings in Richmond concerning the approval of the ACP and MVP pipelines.
*Photos by Landon Shroder