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Federal judge grants immediate access to disputed properties along MVP path


Picture: Brad McElhinny/MetroNews

Trees are marked along a ridge that's a proposed path of the Mountain Valley Pipeline.

By Brad McElhinny | MetroNews | February 4, 2018


CHARLESTON, W.Va. — A federal judge on Friday granted approval for the Mountain Valley Pipeline to move ahead with eminent domain on properties along the project’s path in northern West Virginia counties.

The decision stands to give the pipeline developers access to disputed property even before fair value is assessed.

“MVP has carried its burden to clearly establish that it will be irreparably harmed in the absence of a preliminary injunction, that this harm is not outweighed by those concerns identified by the defendants, and that granting immediate access is in the public interest,” U.S. District Judge Irene Keeley wrote.

Another federal judge is examining similar eminent domain issues in the southern West Virginia counties that are in the pipeline’s path. Judge John T. Copenhaver planned to set a hearing this week in Charleston.

And in federal court in Virginia, Judge Elizabeth Dillon last week rejected the MVP’s request for immediate access to about 300 disputed parcels.

So there are three situations on eminent domain questions in three different federal courtrooms on a project that MVP says is very time-sensitive.

Mountain Valley Pipeline’s developers have been saying work to clear trees along the pathway needs to begin this month for the project to stay on track. The developers say the project needs to stay on its timeline to comply with contracts to supply natural gas.

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.

MVP’s eminent domain action on more than 100 properties where agreements had not yet been reached with landowners originally was filed in U.S. District Court in Southern West Virginia. The properties in the northern counties were then split off into a separate federal lawsuit in the Northern District of West Virginia.

Decision in northern West Virginia

This past Friday at the federal courthouse in Clarksburg, Judge Keeley issued a 64-page decision agreeing that MVP has the right and the need to exercise eminent domain on the disputed properties in the northern West Virginia counties.

Much of Keeley’s reasoning was based on MVP’s possession of a certificate of  public convenience and necessity issued last fall by the Federal Energy Regulatory Commission. Keeley also concluded that the disputed property is necessary for the project.

“In summary,” Keeley wrote, “MVP’s FERC Certificate is effective in this Court and does not include a condition limiting the exercise of eminent domain.”

Environmental groups have filed yet another challenge to Mountain Valley Pipeline’s FERC certificate in federal appeals court in the D.C. Circuit. That filing in early January contends property owners along the pipeline’s path would suffer irreparable damage to their property and lifestyles.

In the case Keeley considered, property owners argued that it’s unclear they’ll receive fair value for the use of land. They contended MVP is speculative and has the potential to fail — and, if it would, then property values would be unnecessarily diminished.

“Despite these challenges,” Keeley wrote, “the Court concludes that MVP has established an ability to pay such that it may seek immediate possession of the easements.”

The judge noted that MVP has indicated its willingness to post a bond equal to the appraised value of the easements to be taken. She said what constitutes just compensation remains in dispute, though, and should be worked out through ongoing negotiations and the court system.

‘Irreparable harm’

Keeley ruled that MVP significantly demonstrated the project would suffer irreparable harm without an injunction.

In this case, the possible harm is economic.

“No party contests that, if MVP suffers financial losses as the result of its inability to access the condemned easements, it will not be able to recover those losses in this or any other litigation,” Keeley said. “This weighs in favor of finding irreparable harm.”

When MVP starts construction, the project will proceed in 11 distinct segments along the pipeline’s length. Three of those segments are in the northern district where Keely was considering the impact.

After crews fell trees on properties used for service facilities and access roads, as well as those with endangered species, MVP’s contractors will work in a line to excavate and install pipeline along each of the 11 segments.

“If MVP is forced to break from this method of construction, it will face financial penalties from its contractors,” Keeley wrote.

The construction schedule hinges on clearing trees by this March 31 to comply with U.S. Fish and Wildlife Service regulations protecting bat and migratory bird habitats.

If MVP does not finish its tree clearing by then, it won’t be able to until next November 15, the company contends.

MVP claims such a delay would result in the loss of $40 to $50 million each month that the projectis out of service, up to $200 million in delay and cancellation fees and $40 to $45 million in otherwise unnecessary administrative and carrying costs.

The property owners contest whether those costs are truly likely, but Keely wrote “even a drastically lower amount of loss than estimated by MVP is irreparable in light of the effect that delayed construction would have on end users.”

Immediate access

Land owners contended MVP should not have access to their property before fair value is assessed.

Keeley ruled that determination could take many more months, potentially putting the project way off schedule.

That, she said, could undercut the conclusion by FERC that the project’s potential for increased reliability of natural gas supplies is in the public good.

“There can be no dispute that delaying MVP’s completion of the project will delay the introduction of the benefits identified by FERC,” Keeley wrote. “Moreover, expediting construction will also hasten the creation of approximately 6,000 temporary jobs and millions of dollars in yearly property taxes.”

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