Monroe County judge rules Mountain Valley Pipeline developers can't survey property without permission

Monroe County judge rules Mountain Valley Pipeline developers can't survey property without permission

Posted: Aug 06, 2015 1:19 PM EDTUpdated: Sep 05, 2015 1:19 PM EDT

By Sarah Tincher, Energy Reporter

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A Monroe County Circuit judge has ruled the companies behind the proposed Mountain Valley Pipeline can’t survey some landowners' property without their permission.

After several months of back-and-forth in court, Monroe County Circuit Court Judge Robert Irons decided Aug. 5 that Mountain Valley Pipeline LLC — a joint venture between EQT Corp., NextEra Energy, WGL Midstream and Vega Midstream MVP LLC — failed to establish that the project would provide sufficient public use to justify entering private property without an owner's permission.

Mountain Valley Pipeline LLC has pre-filed with the Federal Energy Regulatory Commission to build its proposed 300-mile natural gas transmission pipeline — called the Mountain Valley Pipeline — between Wetzel County, West Virginia and Pittsylvania County, Virginia.

The legal battle began in March when landowners in Monroe and Summers counties who had denied Mountain Valley Pipeline surveyors access to their property, which was met by legal threats from the company. But several landowners took the first legal steps, filing complaints in Monroe and Summers county circuit courts March 18.

The complaints, submitted by Derek Teaney with Appalachian Mountain Advocates, argued against the company's eminent domain rights.

According to the complaints, the right of entry established under West Virginia law does make the power of eminent domain available to certain governmental and corporate bodies; however, Teaney argued, the power of eminent domain can only be exercised in West Virginia if the property is going to be put to public use. For a public use of a property to exist, the complaint states, “the public (must) retain certain definite rights to its use or enjoyment.”

But in a July 31 Monroe County Circuit Court brief, Mountain Valley Pipeline said the “plaintiffs repeatedly confuse two different things.”

“The first — the one at issue in this case — involves a company’s right of entry for surveying property that it desires to appropriate,” the filing stated. “The second — the one that may occur in the future — involves a company’s right to condemn property for a public use.

“In allowing entry to survey, the state is exercising its police power. In granting the right to condemn, the state is exercising the power of eminent domain,” the filing continued. “These are two different things.”

Additionally, the filing continued, “Although plaintiffs do not content that their property will be damaged, they argue that they have an absolute right to exclude anyone from entering their property. As MVP shows, however, there is not such absolute right. The state may allow temporary entries of the common good, and this is such an entry.”