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VA Supreme Court Again Upholds Pipeline Survey Law in Split Decision

The Supreme Court of Virginia has once again upheld a controversial state law allowing natural gas companies to survey on private property without the landowner’s permission under certain conditions, another legal victory for the oft-challenged Atlantic Coast Pipeline LLC (ACP) as it works to finish construction and enter service next year.

In the case of Barr v. Atlantic Coast Pipeline LLC, Virginia’s high court on Thursday upheld a lower court’s ruling allowing the 1.5 Bcf/d, 600-mile pipeline’s developers to gain access to private property for survey work. The particulars of the case hinged on whether natural gas companies seeking entry to survey under the 2004 law -- 56-49.01 in the Code of Virginia -- must be doing so to “both satisfy regulatory requirements and to select the most advantageous route” or if meeting either one of those conditions separately is sufficient.

ACP had sought and won a declaratory judgment allowing entry under the 2004 law after providing evidence that it needed to survey for selecting the best route possible, but a group of landowners challenged that ruling, arguing that ACP had failed to also show that it was necessary to survey to satisfy regulatory requirements.

The majority in the opinion, authored by Justice Cleo E. Powell, concluded that the provisions should be read separately.

“The need to satisfy regulatory requirements occurs at an entirely different time from the need to select and/or improve the pipeline and its route,” Powell wrote. “Therefore, the few activities that are necessary to satisfy both provisions would not be necessary at the same time. Thus, by inextricably coupling the two enumerated provisions, any discretion granted to natural gas companies would be taken away for no discernible purpose.”

Justice D. Arthur Kelsey dissented in the case, arguing that both provisions in the 2004 law laid out necessary preconditions for conducting the surveys without landowner permission and noted that no regulation required ACP to survey prior to securing its FERC certificate.

“The majority holds that ‘and’ means ‘or’...and thus concludes that satisfying” the first precondition of the statute “renders it unnecessary to satisfy” the second, Kelsey wrote. The majority’s interpretation “means that it is sufficient that an out-of-state pipeline company wants to enter onto private property against a landowner’s will (to determine whether to take the property) even though it does not have to do so in order to satisfy regulatory requirements.

“Under this view, it does not matter that the pipeline company has never been granted a federal permit to build the pipeline or even that the company has never applied for one.”

Kelsey fired back at the majority that the “discernible purpose” for not separating the provisions of the 2004 law is “the legislative purpose to withhold from a pipeline company the legal license to trespass onto private property when no ‘regulatory requirements’ make it ‘necessary’ to do so.”

For the pipeline’s part, a spokesman for lead ACP developer Dominion Energy Inc. expressed support for the ruling.

“It’s in everyone’s interest that we choose the safest and most environmentally responsible route for this infrastructure, and surveys are the best way to do that,” Dominion spokesman Aaron Ruby said in an email. “The court’s ruling allows us to continue working with landowners to minimize impacts on their properties and the environment. We’re committed to treating all landowners with respect and fairly compensating them for the use of their land.”

Virginia’s Supreme Court has previously sided with ACP, a high-profile greenfield project that has repeatedly faced challenges from landowners and environmental groups and was the subject of political debate in the state’s recent gubernatorial election. Last year, the high court ruled in favor of ACP after a landowner challenged the constitutionality of the state’s pipeline survey law. In 2016, the court declined to hear an appeal that also challenged the survey law.

Among the latest legal challenges mounted against ACP, environmental groups -- borrowing strategies that resulted in a stay of the similarly-routed Mountain Valley Pipeline -- have focused on ACP’s Nationwide Permit 12, issued by the U.S. Army Corps of Engineers for waterbody crossings.

ACP, a joint venture of Dominion, Duke Energy, Piedmont Natural Gas and Southern Company Gas, began construction earlier this year after receiving a certificate from the Federal Energy Regulatory Commission in a split decision last fall.

The project, designed to transport Marcellus and Utica shale gas from West Virginia into Virginia and North Carolina, has been slated for service in late 2019.

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