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Virginia Supreme Court Sides With Atlantic Coast Pipeline in Eminent Domain Case

The Virginia Supreme Court on Thursday upheld the rights of natural gas companies to gain entry to private property to survey, ruling against a landowner who sought to bar Atlantic Coast Pipeline LLC (ACP) from her property.

The court in a written opinion upheld a lower court's ruling, finding that ACP, as a natural gas company, had the right under Virginia statute to enter private property without permission to survey for projects that would be eligible for eminent domain.

While the landowner challenged the constitutionality of the survey law, the state's high court concluded that "today, every state has codified the common law privilege of a body exercising eminent domain authority to enter private property to conduct preliminary surveys without trespass liability. Virginia statutory law has done so for 235 years."

A separate opinion issued Thursday found that ACP had not been specific enough in providing advanced notice to property owners of the dates on which it planned to conduct surveys under the statute.

The Virginia Supreme Court "has upheld the constitutionality of Virginia’s survey law and reaffirmed our right to perform these surveys,” Dominion Energy and ACP spokesman Aaron Ruby said. “The court’s ruling is consistent with the rulings of every other state and federal court that has looked at this issue. We’re hopeful [the] ruling will settle this issue and allow us to continue working cooperatively with landowners to develop infrastructure in a way that minimizes impacts to the environment and their properties.

"We respect the court’s ruling regarding landowner notifications," he said. "We proactively addressed this issue by revising our notices to include specific dates of entry before surveying these properties. Going forward, we’ll continue our company’s policy of providing landowners with specific dates of entry prior to surveying."

The 600-mile, 1.5 Bcf/d greenfield ACP would start in Harrison County, WV, and travel through Virginia and North Carolina, crossing rural and mountainous terrain along the way. The project has faced vocal opposition from environmental groups and many landowners.

ACP has developed numerous route adjustments since filing with FERC in 2015, and the pipeline has had to lean on the Virginia survey law in stretches in order to gain access for survey work.

While some local officials have embraced the project as a potential economic development boon, the vocal opposition to ACP -- and the similar Mountain Valley Pipeline -- has played a factor in Virginia politics recently.

"The Atlantic Coast Pipeline is a vitally important infrastructure project that will meet the urgent and growing needs of public utilities in our region to generate cleaner electricity, heat homes for a growing population and power local businesses in a diversifying economy," Ruby said. "We value the important contribution every landowner makes in building our nation’s infrastructure, and we’re committed to treating all landowners with fairness and respect. One of the most important ways we can do that is by performing surveys so we can choose a safe and environmentally responsible route with the least impact on their properties."

ACP, backed by Dominion, Duke Energy, Piedmont Natural Gas and Southern Company Gas, is awaiting a final environmental impact statement from the Federal Energy Regulatory Commission, expected to arrive this summer. The project is targeting an in-service date in 2019.

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