Landowners say Mountain Valley Pipeline shouldn’t gain immediate access

CHARLESTON, W.Va. — Landowners being sued by Mountain Valley Pipeline are arguing that the developer should not have immediate access to their property.

There are a couple of issues in dispute in federal court over the 303-mile pipeline project. One is what constitutes fair compensation for those who are giving up access to their land.

Another is whether the pipeline company has demonstrated that it should be legally allowed immediate access to people’s property — even prior to compensation being determined — to get the project underway.

The pipeline developers contend they’re on a tight deadline, needing to get started by Feb. 1. By that date, they say, they need to start clearing trees to minimize effects on bat and bird habitats.

If they miss the start date, they say, the project’s timeline will be knocked off course. The project has a desired completion date of December, 2018. MVP had earlier filed a motion for partial summary judgment, asking for permission to get going.

Landowners who are defendants in an eminent domain lawsuit in U.S. District Court in the Southern District of West Virginia, contend the pipeline developers haven’t demonstrated their authority to immediately gain access to property.

In a brief filed Dec. 29, the landowners dispute the “quick-take” power of Mountain Valley Pipeline.

They say such power is reserved for traditional governmental acquisitions for purely public use projects.

They also note the certificate granted this past fall by the Federal Energy Regulatory Commission identified conditions that still had to be met — particularly, half a dozen state and federal regulatory authorizations.

“As stated above, since MVP is unable to demonstrate that it has met the conditions set forth by FERC in its issuance of the Certificate, the Certificate has no present legal effect,” wrote lawyers for the landowners.

“Without a valid Certificate from FERC, MVP is unable to proceed with its intended project. Therefore, by extension, MVP is also unable to show that the property interests it seeks to condemn are necessary as, without a valid certificate, its proposed project is unable to advance.”

The lawyers continued, “If the project is unable to advance, MVP no longer needs to condemn the property interests it seeks to condemn. Because MVP is unable to demonstrate that the property interests it seeks to condemn are necessary, MVP should be denied summary judgment in the present case.”

Mountain Valley Pipeline filed eminent domain claims against more than 100 property owners in West Virginia. Some are settling. Others are fighting the action in court, as groups or as individuals.

The lack of clear federal authority is a common theme in almost all the opposition.

The brief in opposition to Mountain Valley Pipeline’s motion for partial summary judgment was filed on behalf of about 50 individual property owners.

Lawyers for the landowners also contend there’s risk that Mountain Valley Pipeline could gain access to the property, start work on the project and then fail.

“When a private company such as MVP gains possession prior to a trial on just compensation, there is always the possibility that the company could go under and thereby avoid its responsibility to pay the remainder of just compensation or other lawfully owed fees,” the lawyers wrote.

“This concern rings especially true in the present case as MVP does not currently own or operate any other existing pipelines and is made up of several different subsidiary companies, all of which have joined together only for the sole purpose of constructing and operating this project.”

Mountain Valley Pipeline is a joint venture between EQT Midstream Partners, LP; NextEra US Gas Assets, LLC; Con Edison Transmission, Inc.; WGL Midstream; and RGC Midstream, LLC.

The $3.5 billion Mountain Valley Pipeline would extend 42-inch diameter natural gas pipeline over 303 miles  to transport West Virginia natural gas into southern Virginia.

The pipeline developers say they need access for easements along the pipeline’s path in Greenbrier, Monroe, Nicholas, Summers, Braxton, Harrison, Lewis, Webster and Wetzel counties — although the properties in the northern counties are now subject to a separate federal lawsuit in the Northern District of West Virginia.

The Mountain Valley Pipeline, along with the similar but separate Atlantic Coast Pipeline, gained approval from the Federal Energy Regulatory Commission in mid-October. One of the commissioners dissented, calling the public interest of the projects into question.

Lawyers for the pipeline developers filed a key portion of their legal argument on Oct. 27, asking for immediate access to the property along the route.

The developer laid out a timeline, including key dates it considers crucial.

Starting Feb. 1, MVP wants to start mobilizing construction crews across 11 segments of the project. Each of those is 30 miles long and will be cleared and constructed simultaneously.

MVP and its contractors will first fell and clear trees for properties used for service facilities and access roads. Work then will continue in a straight line down the path — clearing and grading the rights-of-way, ditching the line and moving the pipe.

Hitting that window is crucial, the company says, to minimize environmental consequences. Tree clearing has to happen prior to March 31 for locations with protected bats and before May 31 for species with protected migratory birds.

“MVP’s construction schedule is designed to protect a number of environmentally sensitive species of bats and migratory birds along dozens of miles of the pipeline’s path,” the lawyers wrote.

By mid-April to early May, MVP and the contractors intend to weld pipe in each of the 11 segments. They’ll then test the welds, lower the pipe into the trench, cover and grade the surface, work on crossings and tie-ins, clean and dry the pipeline and finally put as in.

The pipeline is planned to go into service by next December.

The company says it has agreements in place to start shipping gas late this year.

“Delaying the MVP project will unnecessarily postpone the public benefits that the pipeline will provide and unnecessarily increase the costs of completing the work and result in the loss of substantial revenue to MVP,” wrote lawyers for the developers.

Lawyers for MVP say they can guarantee just compensation for affected property owners through a bond.

“In any event,” the lawyers for MVP wrote, “granting immediate access will not affect the landowners’ rights to receive just compensation.”

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