Suit challenges pipeline certificates’ legality

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Property owners in Wilson and Nash counties are part of a federal lawsuit claiming Federal Energy Regulatory Commission certificates issued to the Atlantic Coast Pipeline and the Mountain Valley Pipeline are in violation of the Natural Gas Act and the U.S. Constitution.

Led by Bold Alliance, some seven groups and 95 people, mostly property owners in West Virginia, Virginia and North Carolina, filed suit in the U.S. District Court for the District of Columbia against the Federal Energy Regulatory Commission, its Chairman Neil Chatterjee, Commissioners Cheryl Lafleur and Robert Powelson, the Mountaiun Valley Pipeline and the Atlantic Coast Pipeline LLC.

The ACP is a 600-mile natural gas pipeline that would bring natural gas from West Virginia through Virginia to North Carolina by way of a 36-inch-wide, high-pressure piping system. Some eight counties in North Carolina are affected directly, including Wilson County, where 12 miles of the pipeline are proposed to be located.

Primary backers for the ACP are Dominion Energy and Duke Energy.
The Mountain Valley Pipeline, backed by a consortium of energy companies, is proposed to run 303 miles carrying natural gas from Wetzel County, West Virginia to Pittsylvania County, Virginia.

Bold Alliance is a Nebraska-based nonprofit that “advocates on behalf of impacted landowners and the general public to stop the use of eminent domain for private gain,” according to the suit.

Joining in the suit are Pearl L. Finch, Heather Louise Finch and Wade Raymond Finch, whose Wilson County property on N.C. 581 and Renfrow Road is crossed by the pipeline’s proposed path. Also joining the suit are W. Marvin Winstead, Jr., of Nashville, whose 70 acres in Nash County are affected, James A. Hardee, of Enfield, whose 8.5 acres on Heathsville Road are affected as well as Joe Poland, of Nashville, whose 40 acre tract off Old Bailey Highway near Nashville, are also affected.

All property owners are subject to the loss of, or the long-term use of their properties through eminent domain claims by the pipeline developer.

In its 46-page complaint for declaratory and injunctive relief, the plaintiff alleges that “FERC policies and practices related to regulation of pipelines, FERC’s Certificate Program and its application to the eminent-domain provision of the Natural Gas Act no longer further a truly public use and instead unlawfully opens the gate to allow private gas companies to exercise condemnation powers far in excess of what Congress ever intended or what the Fifth Amendment allows.”

The plaintiffs say that “this statutory and constitutional challenge is long overdue.”

According to the suit, FERC’s certificate program and its “gatekeeping” role in safeguarding the use of eminent domain under the Natural Gas Act “falls short in many ways.” Among them, the commission does not require pipeline companies to demonstrate that their projects serve the public use.

The suit says that FERC does not inform affected property owners “that they must intervene to avoid waiving the right to challenge FERC’s grant of certificate.”

According to the suit, the commission’s “condition certificates” and “blanket certificates” are not statutorily authorized and “give pipeline companies eminent-domain powers far beyond statutory and constitutional limits.”

The suit states that the FERC “does not require companies to post bonds or otherwise demonstrate sufficient assets before commencing projects, thus creating a risk that those private, for-profit companies will not actually and ultimately pay constitutionally mandated just compensation for the property they take.”

These shortcomings violate the Natural Gas Act itself, the suit states.

The lawsuit “seeks a declaration that FERC’s certificate program, as implemented, violates the Natural Gas Act and the U.S. Constitution,” specifically the due process and takings clauses of the Fifth Amendment.

The plaintiffs are asking the court to declare the certificates of necessity and convenience for the Atlantic Coast Pipeline and the Mountain Valley Pipeline as unlawful.

Currently, the ACP is seeking approval for a sedimentation control plan from the North Carolina Department of Environmental Quality’s Division of Energy, Mineral and Land Resources.

Carolyn Elefant, an energy and eminent domain attorney based in Washington, D.C., wrote the complaint for the plaintiff. She is formerly an attorney-adviser for the Federal Energy Regulatory Commission.