Editor & Publisher, Marcellus Drilling News (MDN)
The Supreme Court has refused to take a challenge to pipeline condemnation authority made against the Mountain Valley Pipeline. That’s a big win for MVP!
What could have been a major threat not only to Mountain Valley Pipeline (MVP), but to all pipeline projects, was averted on Tuesday when the U.S. Supreme Court declined to hear a case brought by 13 landowners (backed with Big Green money) challenging the right to use eminent domain for private companies.
A group of 13 landowners in Virginia whose property was force taken by MVP using eminent domain appealed a case they lost in federal court to the U.S. Supreme Court last October. The landowners claim MVP took private land–their land–to use for private/corporate gain and not (as the law requires) taken for a “public” benefit.
Eminent domain allows the taking of private land for public benefit, but not taking private land for private benefit. The issue, at its core, revolves around this question: What is a public benefit? And, Can a private company use government powers because what they provide “benefits” the public?
Whether or not to hear the case, a preliminary hearing, was held Tuesday. At least four Supremes need to vote to accept a case for the court to fully hear and rule on it. The Supremes get 8,000 such requests each year, and accept maybe 80 (or 1%). This case didn’t make the cut, according to the Roanoke Times:
The U.S. Supreme Court has declined to hear a case in which a group of landowners argued that their property was illegally taken through eminent domain laws for the Mountain Valley Pipeline.
In October, about a dozen landowners along the pipeline’s route asked the high court to reverse the dismissal of their lawsuit, heard in Roanoke’s federal court, that challenged the way developers of the natural gas pipeline were allowed to obtain forced easements through their property.
In an order filed Tuesday, the Supreme Court did not explain why it is not taking the case.
Mia Yugo, one of three Roanoke attorneys who asked the court to consider the appeal, said it would have been “extremely rare” for the case to have actually made it to the floor of the nation’s highest court.
The Supreme Court agrees to hear oral arguments and render a decision in only about 80 of the approximately 8,000 cases that get filed each year.
Among the constitutional questions raised by the lawsuit was whether eminent domain — a power normally invoked by governmental bodies for projects such as highways and power lines — should be awarded to a private company in pursuit of profits.
In what the lawsuit called “a government sanctioned-land grab,” Congress through the Natural Gas Act has allowed the Federal Energy Regulatory Commission to delegate the power of eminent domain to companies like Mountain Valley, once it determines there is a public need for the natural gas they plan to ship through massive buried pipelines.
U.S. District Court Judge Elizabeth Dillon dismissed the lawsuit in December 2017, saying she lacked jurisdiction to hear the case. The 4th U.S. Circuit Court of Appeals upheld her ruling in a decision that the landowners then appealed to the Supreme Court.
A Mountain Valley spokeswoman said Tuesday the company is pleased with the court’s decision not to reopen the question of eminent domain.
“We look forward to continuing the safe, responsible construction of this important infrastructure project that will deliver clean-burning natural gas to the growing number of end-users in the mid-Atlantic and southeastern United States,” Natalie Cox wrote in an email.
After dismissing the lawsuit, Dillon in a separate proceeding granted Mountain Valley’s request to obtain forced easements across nearly 300 parcels in the six Southwest Virginia counties — Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania — through which the pipeline will pass.
The actual condemnations allowed by Dillon’s order are also being appealed. A three-judge panel of the 4th Circuit heard oral arguments in September, and a decision could come any day.
“Landowners across the country and elsewhere will assuredly continue to fight private taking for private gain, and to seek timely and meaningful relief in the courts,” the Protect Our Water, Heritage, Rights coalition of pipeline opponents said in a statement.
Meanwhile, Dillon is presiding over the complex process of deciding how much Mountain Valley must pay each of the landowners, after the fact, for the use of their land. Tree-cutting and land-clearing along 125-foot wide swaths for the pipeline began shortly after Dillon’s order in January 2018, and is expected to continue through this year.
Since Mountain Valley gained possession of the properties, it has reached settlements with some of the landowners. Others have struck agreements through mediation sessions with a magistrate judge.
About 100 cases remained unresolved in October, according to court documents filed at the time, and more settlements were expected. So far, seven trials have been scheduled for later this year, when juries will be asked to decide how much money the landowners should get.
Although we dodged a Supreme bullet with this case, we can’t exhale just yet. There are two more pipeline cases, both aimed at overturning Atlantic Sunrise Pipeline, still up for consideration at the high court during this term.
Editor’s Note: The degree to which fractivists have invested in fighting pipelines battles to their bitter ends indicates how desperate their funders are to do anything they can to slow the advance of a shale revolution they cannot stop. They’ve lost the battle over fracking, so they’re now focused on doing what they can to halt the distribution of the gas. Ultimately, this defensive strategy, too, will fail. It illustrates the overarching goal of these funders; buying time for special interest green energy investments to take hold and for wilderness making land scams to continue.