FERC use of eminent domain violates private property rights?

From an Article by Shayne Dwyer, WSLS News 10, Roanoke, VA, December 26, 2018

ROANOKE, Va – A lawsuit involving the Mountain Valley Pipeline may be headed to our nation’s highest court. Wednesday, Virginia landowners filed a reply arguing their case does have merit to be heard after non-decisions by lower courts. They want to challenge the constitutionality of eminent domain before the United States Supreme Court, arguing the system is flawed and needs re-working. It even has the backing of some conservative legal scholars.

The Natural Gas Act of 1938 is the groundwork for what we now have today, the Federal Energy Regulatory Commission, otherwise known as FERC. These are the folks that authorized the Mountain Valley Pipeline to use eminent domain to build on private land.

Now, the Supreme Court is deciding whether or not they’ll allow Roanoke lawyers to argue why they say the 80-year-old law is unconstitutional, which could change the rules for pipelines across the country. And in the briefing submitted Wednesday, arguing FERC and the private company should have never been given that power to begin with.

Pipeline fighters have been giving it their all in the last three years, but their biggest accomplishments may be just around the corner. There’s a real possibility the nine justices of the United States Supreme Court may soon be looking into the Mountain Valley Pipeline.

“The case deals with two primary issues, both of which are essential to the preservation of individual liberty,” Gentry Locke lawyer Mia Yugo said. “The first issue is the private non-delegation doctrine and the second issue is the right to private property.”

Yugo, alongside Tom Bondurant and other colleagues at Gentry Locke, are petitioning the United States Supreme Court to hear a case on whether the use of eminent domain for private pipeline companies is legal, arguing 80 years ago, Congress made a mistake with the Natural Gas Act of 1938.

“So just because Congress passes a statute, doesn’t mean that Congress gets it right,” Yugo said. “And when they don’t get it right the individuals or really anybody can go into court, if you have standing, can go into court and challenge that statute as unconstitutional and that’s precisely what we’ve done.”

The Mountain Valley Pipeline running from West Virginia, through Virginia, and onto North Carolina is one of a number of projects planned and under construction across the country. For that reason, local landowners feel this case has national appeal and has the makings of a landmark case affecting all Americans.

“This is about the Constitution, this has relevance for all of us, every single citizen because none of us are safe when this is going on and the court absolutely needs to hear us,” Preserve Montgomery County Chairwoman Lynda Majors said.

In a surprise to some, the Rutherford Institute, a well known conservative think thank, filed a friend of the court brief in favor of the case being heard before the Supreme Court, arguing that the court could do everyone a favor by letting pipeline fighters have their day before the bench.

“Not only is private property at stake, but our constitution, the Fifth Amendment says very clearly that you can not take someone’s property without just compensation, you’re not seeing that here,” Rutherford Institute founder John Whitehead said.

In responses last week, MVP argued administrative reviews took care of this situation at the FERC level and did not respond to our request for comment. Landowners argue that that claim is invalid because FERC should have never been given the power to dole out to MVP in the first place.

“The core question here is whether the Constitution of the United States allows a profit-seeking private entity to take land from an individual landowner for the purposes of private gain, private enterprise or private benefit,” Yugo said.

The Supreme Court is expected to go to conference and make a decision on whether or not it will hear the case in the coming weeks. If accepted, it could be argued sometime in late 2019 or early 2020.

MVP and FERC responses were not required to be filed and pipeline fighters feel the fact that they did respond underscores the fact that this is a national issue. They also remain frustrated with the timeline of all this and delays issues by the court, because every day they wait to argue is another day that construction can continue.

“Nobody else has challenged the Natural Gas Act as an unconstitutional delegation of power and so this makes this particular case not just a local case, but a national case of national importance and it will affect every American in every part of this great country,” Yugo said.

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WVDEP Launches Webpage Dedicated to Helping Citizens Learn About Pipeline Projects

Detailed maps, transcripts, permit information available on single webpage: http://bit.ly/2Ee7Myj

Hagy Farm, Jackson County, WV

Federal and State Legal System Shields Fracking Industry Versus Landowners

North Dakota

North Dakota requires compensation for surface owners

As reported in the Western Livestock Journal, February 1, 2013 

Recognizing the concerns of surface owners who do not own the minerals, North Dakota law has been modified through the years to offer the surface owner more property protection rights; the key legislation at this time is the Surface Damage Compensation Act, which defines two categories of surface damage. The first category is damage and disruption and the second is loss of production. The legislation includes examples of compensable damages, such as lost land value, lost use of and access to land, and loss value of improvements.

The mineral developer must provide the surface owner a notice of planned activities (seven days for activities that do not disturb the surface and 20 days for oil and gas drilling operations) and a written offer to compensate for damages through a surface compensation agreement. If the surface owner does not accept the agreement the parties can proceed in court.

However, in an effort to reduce the number of court proceedings, the North Dakota Legislature has directed the Department of Agriculture to provide mediation service for the surface owners and mineral developers. This statute also states that these payments are intended to compensate the surface users, such as a farm tenant.

The anticipated network of pipelines that is intended to reduce truck traffic and gas flaring is leading to a need for pipeline easement. Executing the easement is an opportunity for a surface owner to thoughtfully specify what rights are being granted….

Surface users and mineral owners may be told when they are offered a lease, compensation agreement or document to create an easement that states “this is standard language” or that it is “a standard document.” However there is no such thing as a standard document.

Mineral owners and landowners should not feel obligated to accept the first offer. They should take their time and review the document, consider their situation, assess whether the document addresses their needs and concerns, and seek outside council if they so desire…

David Saxowsky, North Dakota State University, prepared this article in the Western Livestock Journal. Professor Saxowsky teaches Farm and Agribusiness Management and related subjects, and maintains the ND Oil and Gas Law site at this site.

The following editorial was carried by the Wheeling Intelligencer on October 8th:

Americans need the enormous new supplies of natural gas being found in this region of the country. West Virginians and Ohioans need the jobs that come with gas drilling and processing. Local and state economies need the boosts that come from the industry.

But not at the expense of unnecessary destruction of the environment.

As we reported two years ago, residents of some areas of Wetzel County discovered some streams had been damaged badly by crews working for Chesapeake Energy. In one case, a waterfall on Blake Fork was destroyed so a road could be constructed to a drilling site.

It appears Chesapeake has repaired much or all of the damage caused – but that does not change the fact that the company broke the law in the first place. Violations of the federal Clean Water Act were committed.

Last week, Chesapeake agreed to settle pending legal action by the U.S. Environmental Protection Agency, related to the Wetzel County problems. Subject to approval by U.S. District Court Judge Frederick P. Stamp Jr., the deal with the EPA calls for Chesapeake to pay a $600,000 fine and be placed on probation for two years. During that period the company’s activities will be supervised even more intensively than normal by the EPA.

EPA officials, noting they worked closely with U.S. Attorney William Ihlenfeld on the case, stressed it sets something of a precedent. The action was the first by the agency related to drilling in the Marcellus Shale and under the EPA’s Energy Extraction Initiative.

Let’s hope it is the last such prosecution – not because the agency backs away from such activity but because the gas industry pays more attention to obeying laws such as the Clean Water Act.

When the Marcellus Shale drilling boom began in our area, some local residents worried gas companies would be allowed to destroy the environment at will, with little or no attempt made to stop them. The prosecution of Chesapeake for actions in Wetzel County should send a signal that is not the case – that while we welcome gas drilling here, we will insist that rules meant to safeguard the environment be obeyed.

The web-site to the above editorial is here.

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Earth Supposed To Belong to All

September 23, 2012

TO THE EDITOR: The Intelligencer / Wheeling News-Register

For 70 years I believed the earth’s biosphere belonged to all of the billions of people on earth.

Within the last three years, I have come to the realization that it belongs to the following industries:

- Agriculture. – Coal mining of all types. – Oil drilling and tar oil processing. – Marcellus shale processing. – Lumber. – Fishing.

Maybe some day we will get the biosphere back for the people.

James R. Wisialowski, Wheeling, WV

Landowners are fighting for the right to appeal drilling permits, as described in the Charleston Gazette on September 22^nd. The state Supreme Court will hear arguments in a significant case that could decide if surface landowners are able to appeal oil and gas drilling permits on their land. Industry lobbyists and the state Department of Environmental Protection all seem to agree that West Virginia’s oil and gas statute doesn’t specifically allow such appeals.

But though justices appear to have incorrectly cited that statute in a ruling 10 years ago, citizen groups argue now that the court reached the correct result. They say surface landowners should have a due process right to have their challenges to drilling permits heard.

“We are asking the courts to recognize the surface owners’ constitutional right to a hearing – a hearing after the driller files the permit application, and to appeal if the DEP errs in issuing the permit,” said Julie Archer of the West Virginia Surface Owners’ Rights Organization. Archer’s organization filed a “friend of the court” brief in support of Doddridge County resident Matthew Hamblet in his effort to challenge an EQT Production Co. gas well permit on his land.

Hamblet owns the surface of a 443-acre parcel, but does not own the rights to the oil and gas underneath the land. When EQT obtained a lease and applied for a permit to drill on the site, Hamblet objected to parts of the company’s permit application, noting damage from previous drilling and urging DEP to require changes in the company’s plans. DEP’s Office of Oil and Gas approved EQT’s plans anyway, and Hamblet filed a lawsuit in circuit court to challenge that approval.

In his case, lawyers Cynthia Loomis and Isak Howell cite a 2002 Supreme Court opinion that said surface landowners have the right to file court appeals of DEP permit actions on oil and gas wells. But the statute cited by the court in that case doesn’t actually grant that right to landowners — only to coal owners who are concerned about nearby gas drilling.

Broad coverage information on Marcellus drilling and fracking can be found at:

www.WVsoro.org       and         www.FrackCheckWV.net

Click here to see the video.

Responsible Associated Landowners of New York State

Bill Feldman of Andes Works! describes the Responsible Associated Landowners of New York State, or REALNYS, as “a site by and for like-minded landowners who are against slick water, high volume hydrofracturing (fracking) of our lands to extract shale gas and oil.”

Feldman and fellow REALNYS board member Leigh Melander, also of Andes Works!, have put together a video to educate fellow landowners on the tactics of the gas industry so that citizens can make informed decisions about their land and engage in shaping public policy.

REALNYS is an ad hoc, grassroots group of community volunteer landowners from all over the state who have no agenda other than to protect their land and future from the damages of fracking.

Feldman hopes that REALNYS will be a place for people to do something positive for their communities and take a stand against the bullying of the gas industry. Already, more than 1,565 members have signed up to protect their more than 32,000 acres of land.

Visit EcoWatch’s FRACKING page for more related news on this topic.

After a long meeting at the Capitol on Thursday morning, only four matters remain for the committee, as shown below. Senator Facemire said he and Delegate Manchin hope to have all work wrapped up in a  final meeting in Clarksburg on October 22nd. Then they can forward a bill to acting Gov. Earl Ray Tomblin and the leadership of both houses, as reported yesterday. If a general consensus can be reached, the bill could be on the agenda for a special meeting in November, Facemire said.

 AMENDMENTS TO Senate Bill-424 
› Adopted – Acreage Reduction
› Adopted – Air Regulation
› Adopted – Air Study
› Adopted – Approval of Certification
› Adopted – Calender Days
› Adopted – Clarifying Reporting Requirements
› Adopted – Directional Drill Info
› Adopted – Eliminate Oil and Gas Ex Board
› Adopted – Highway Enforcement
› Adopted – Impoundments
› Adopted – Increase Bonding
› Adopted – Notice Requirements
› Adopted – Permit Fee
› Adopted – Property Owner Public Notice
› Adopted – Public Comment and Hearing
› Adopted – Public Website and E-Notification
› Adopted – Quality Test
› Adopted – Reports to Div of Labor
› Adopted – Reuse Frac Fluid
› Adopted – Single Pad Impoundments
› Adopted – Stronger Frac Review
› Adopted – Tax Reimbursement
› Pending – Casing Cement Requirements
› Pending – Protection of Water Supplies
› Pending – Surface Owners Agreement
› Pending – Well Location Restrictions

The  Joint Select Committee on Marcellus Shale this past week, worked on the following:

Expanded the buffer zones between Marcellus shale wells and homes, livestock and drinking water through provisions added Wednesday. These include one of 625 feet between the center of a well site and a residence or building that houses dairy cattle or poultry. The committee voted after hearing from Marion County resident Casey Griffith, who said the dream house he built with his wife has been ruined by a well site 200 or so feet away. Around-the-clock noise, dust churned up by well construction and waste gas burned off at the site are among his family’s concerns, he said.

The committee also agreed to allow the DEP secretary to increase this spacing if scientific evidence shows unacceptable health risks to residents of the nearby house. Delegate Barbara Evans Fleischauer proposed that amendment while also advocating without success for larger buffers.

Other provisions added Wednesday would keep wells 250 feet from drinking wells or springs, 1,000 feet from public water supply intake points and 300 feet from a recognized trout stream.

Industry groups have objected to the proposed new permit fees of $10,000 for an initial well and $5,000 for each additional well at that site. These fees aim to provide DEP with enough revenue to hire the additional gas field inspectors and support staff needed for Marcellus operations. Lawmakers have been hoping for detailed cost estimates from the agency, to allow them to adjust those fees and ease industry concerns. But DEP Secretary Randy Huffman told the committee Wednesday that each change to the bill requires a new set of estimates. Fleischauer and other lawmakers urged Huffman to provide at least some figures at Monday’s meeting.