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Legal Experts Say Pipeline Companies Can't Yet Claim Eminent Domain

PHOTO: Landowners on the route of proposed natural gas pipelines in West Virginia and Virginia have a good legal basis for denying the companies permission to survey on their land, according to legal experts. Photo courtesy of Appalachian Mountain Advocates.
PHOTO: Landowners on the route of proposed natural gas pipelines in West Virginia and Virginia have a good legal basis for denying the companies permission to survey on their land, according to legal experts. Photo courtesy of Appalachian Mountain Advocates.
November 20, 2014

LEWISBURG, W.Va. - Pipeline companies who want to build lines through West Virginia and neighboring Virginia have told some landowners they can survey on their land without the landowners' permission. Legal experts, however, say those companies don't have that right - yet.

Attorney Joe Lovett with Appalachian Mountain Advocates says pipelines can only claim eminent domain, and the right to survey without permission, when they prove their projects serve a genuine public need. He says the pipeline companies in question haven't done that.

"The power of eminent domain is an extraordinary power, only granted for public purposes," says Lovett. "It's improper for a company just to assert that its project is for public use, without actually having had that determined."

Three planned natural gas pipelines - including Dominion's huge Atlantic Coast Pipeline - would bring Marcellus Shale natural gas to eastern states, including Virginia and North Carolina.

The companies say the pipelines are needed to bring natural gas, largely extracted by hydraulic fracturing, or "fracking," to market. Dominion has sent letters to West Virginia and Virginia landowners, indicating they may sue if denied permission to survey for the pipelines' routes. Lovett and other lawyers have described that as bullying.

More importantly, Lovett says, the pipeline companies' threat to litigate might be a bluff. He says if a pipeline is coming through your land, get an attorney.

"My best advice is don't sign anything without a lawyer," he says. "No one should sell their land or go through the eminent-domain process unless they're represented, and there are plenty of good lawyers around to help represent them."

Lovett says three large pipelines all being planned, and even if one can prove the public need to claim eminent domain to federal authorities, that might mean the other two can't.

"Even if one of them is necessary - and even that hasn't been established yet - whether two or three are necessary is even more problematic," he says.

Lovett notes none of the pipelines have approval from a court or federal regulatory authority that would enable them to claim eminent domain.

Dan Heyman, Public News Service - WV