Bacon's Rebellion

Democracy Thrives in Sunlight

Circuit Court Judge Upholds Pipelines' Right to Survey

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by

James A. Bacon
in , ,

pipeline

A circuit court judge in Montgomery County dealt a setback to foes of the Mountain Valley Pipeline yesterday by finding constitutional a controversial state law allowing natural gas companies to survey private property without an owner’s permission. Turk said that the Virginia law allows a natural gas company to enter private property for surveying even if its owner has denied permission, reports the Roanoke Times.

Temporary access to a landowner’s property for purposes of conducting a survey does not represent an unconstitutional “taking” of property without compensation, Turk ruled. “There’s no transfer of property,”  he said. The law in question “takes away the criminal aspect of trespass, something the Virginia legislature has the right to do.”

Turk’s ruling in the Giles County case could have implications for lawsuits filed by landowners in the path of both the proposed Mountain Valley Pipeline (MVP) and the Atlantic Coast Pipeline (ACP), who say that the activity of survey teams on private property can impose costs for which they are not compensated.

Attorneys representing landowners said that they intend to file lawsuits in other counties where clients could be impacted by the proposed pipelines. They will challenge state law on the grounds that MVP does not meet the criteria of a public service corporation. Pipeline foes have advanced the argument that there is no “public necessity” for either the MVP or the ACP, despite the fact that both pipeline companies have signed contracts for most of the pipelines’ capacity. Foes argue that existing pipelines could handle much, if not all, of the volume of natural gas required by the shift from coal- to gas-fired utilities and growth in the economy, and that there is no justification for acquiring rights of way through their land through eminent domain.

— JAB

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  1. Acbar Avatar
    Acbar

    A long-overdue clarification. A surveyor’s right to come your land is no more intrusive than the postman or UPS delivering or the gas man reading the meter or the building inspector inspecting. The nutsos who claim their right to privacy trumps all are not living in the real world.

  2. TomH Avatar
    TomH

    Our experience years ago in New York was that the utility spent millions of dollars on environmental studies – then it was determined that load growth had declined and the multi-billion dollar plant was no longer required. Both regulators and utility personal agreed that there was a better way to do things. A new two-part approval process was worked out, where the need for the project was first evaluated, then if that threshold was met, the full blown environmental assessment process moved forward.

    Although the pipeline projects are under the jurisdiction of FERC, rather than state regulators, a similar comprehensive need assessment seems to be the best way to resolve the most fundamental issue of “public convenience and necessity” before other activities proceed.

    Just having the owners of the pipeline sign contracts to take a majority of the gas transported in the pipeline does not automatically confirm that this is the best way to meet the public need for the gas. Especially, when existing pipelines appear to be able to provide more capacity than will be offered by the Atlantic Coast Pipeline or Mountain Valley Pipeline at a much lower cost and far lower impacts on public lands and private property.

    1. LarrytheG Avatar
      LarrytheG

      the thing that is not easily determined here is the motivation of the players.

      Is Dominion pursuing it’s own pipeline because that would be cheaper than paying the current pipeline owners to transport?

      Dominion seems to be getting into a business new for them – when their are plenty of existing established companies already well experienced in building and operating pipelines. Why is Dominion expanding it’s business scope?

      Is Dominion planning on doing anything else with the gas other than using it to produce electricity -because they don’t own gas distribution lines… (I don’t think) .. and would they be – essentially competing with other companies -like Columbia Gas in the natural gas business?

      You’re not going to find any of these things out very easily because these issues essentially constitute what is surely a proprietary business plan.

      I think the job of govt here – is to

      1. insure that the public interest is being served… and

      2. – to not allow eminent domain to be used as a de-facto subsidy for a for-profit venture.

      3. – to not allow eminent domain to be used as a competitive advantaged among competitors. When you have 4 companies all trying to do the same thing – should all of them be able to use ED because allow one and not the others would be discriminatory but do we need all 4 routes to start with..??? why not let the folks who are the best at acquiring voluntary easements, and utilizing more cost effective routes and existing r/w?

      1. James A. Bacon Avatar
        James A. Bacon

        Dominion has a big gas pipeline business. Interestingly, the Southern Co. electric power company announced yesterday that it was purchasing AGL, one of the Atlantic Coast Pipeline (ACP) partners. I’m not sure what the business case for the acquisition was — I need to read up.

        I’m not sure what Dominion’s business strategy behind the ACP is. One possibility: Dominion, Duke, AGL and Piedmont Natural Gas all use the Transco pipeline, and they all pay Transco a tariff for that use. By taking the block of business that they control and putting it into the ACP pipeline, they can capture a big load of gas-transmission business and split the profit among themselves. In other words, they’re muscling Transco out of the business.

        But that raises the question: Could Transco have met the demand generated by those four major users? Are changes in the marketplace (new pipelines delivering Marcellus gas to New York, for instance) freeing up enough capacity that Transco could meet the growing demand in Virginia and North Carolina? If so, then there’s an argument that the ACP is not a “public necessity.”

        I think that’s the case that the ACP opponents will make before FERC.

        1. LarrytheG Avatar
          LarrytheG

          Is there a map or other info about Dominion’s current pipeline business?

          what do they use it for?

          in terms of taking business from Transco… this goes back to multiple competing players – all claiming to be serving the public interest and all of them wanting ED to help them subsidize the costs.

          Transco’s existing right-of-way certainly qualified for using ED originally – it serves any customer who wants to transport gas and Tranco itself is not in the business of selling gas (I think).

          and all these competitors and none wanting to build a pipeline to Hampton Roads to power gas plants to replace the coal plants closing?

          a separate FYI – there is an existing gas plant within a 1/2 mile of Surry… look just to the SE on this map: https://goo.gl/maps/ai5WK
          called Gravel Neck.. and surprise – it’s listed as a base load plant.

          also no fewer than 7 natural gas plants on the Eastern Shore – all peaking.

          but the question in both cases is what pipeline serves them?

          1. Rowinguy Avatar
            Rowinguy

            Gravel Neck is a peaking plant consisting of 6 combustion turbines:

            https://www.dom.com/corporate/what-we-do/electricity/generation/fossil-fueled-power-stations/gravel-neck-power-station

            The six units there range from 12 to 86 MW in output.

          2. LarrytheG Avatar
            LarrytheG

            re; peaking… listed as base load on the DEQ chart… now I wonder what else is incorrect on the DEQ chart.

            so you also convinced me that Dominion has experience in transmission but if you look at a map of existing transco and columbia gas pipelines in va -they pretty much already feed the entire state including where Dominion is building new plants.

            The pipeline is a significant capital investment to essentially duplicate a backbone that already exists.

            I can see where Dominion would want to do so for their own interests. The question is – is such a pipeline truly in the interests of the public or is it more of a for-profit venture by a private company?

            I think if there is a well-funded legal challenge – it’s going to be made clear that this is not something that’s primarily to provide something to the public that does not already exist.

        2. LarrytheG Avatar
          LarrytheG

          eh… I don’t think Dominion has a pipeline presence in Virginia at all.. I think it’s mostly in Pennsylvania and not very extensive.

          the three big players in Va are Transco and Columbia – and the Eastern Shore company on the Eastern Shore.

          It appears to me that ALL of Dominion’s current gas plants get their gas from the 3 pipeline companies ..

          1. TomH Avatar
            TomH

            Dominion Transmission, the Dominion Resources gas pipeline subsidiary does not have a large presence in Virginia at this time (as far as I know). They have recently built 11,000 miles of gathering pipeline in the Marcellus. This connects various wellheads to gas storage facilities and natural gas liquids processing plants which are also owned by Dominion. They intend to connect the Atlantic Coast Pipeline to the Dominion South Hub which is a gathering point for many of these smaller pipelines.

            A map on Dominion’s website shows their pipelines in this region. The map also shows a Dominion pipeline which connects some of their Marcellus storage facilities to their Cove Point LNG plant. The 42″ 550 mile long ACP would be by far the largest pipeline that Dominion has constructed, from what I understand.

            There is a good map of the major gas transmission lines in the Virginia Energy Plan.

          2. LarrytheG Avatar
            LarrytheG

            can you give the link to their map? thanks

        3. TomH Avatar
          TomH

          I think the AGL (Virginia Natural Gas) portion would have to be met by the added capacity to the Columbia Gas Pipeline to which they are already connected. Or they could still build a connection to the Transco spur in southern VA/northern NC, but that seems unnecessary and expensive. With the prospective decline in federal spending and the Defense Department’s push for energy efficiency and base microgrids, it is unlikely that there will be a great surge in demand in this area (without the announcement of an hitherto unknown project).

          Definitely, Dominion’s Southside plants could be served by Transco since that is the connection that they will use initially. The Transco pipeline alone might be able to provide gas both from the Marcellus and the Gulf Coast; which is a flexibility that Dominion is claiming will require two pipelines to provide.

          Very likely Duke energy could connect to the Transco spur or to the main portion of the Transco pipeline passing through NC.

          Just a guess – but probably Dominion and Duke (which together own 85% of the ACP) want their unregulated subsidiaries to receive a long term stream of revenues from their regulated subsidiaries, instead of paying Transco. This improves both their balance sheet and their revenues (and thus their stock prices). In Dominion’s case, by passing their rate freeze legislation they also avoided any refund of savings to their DVP customers. Therefore, any cost savings goes straight to the parent company and the ratepayers do not benefit (at least in the early years).

          In this case, what is good for the corporations is not necessarily good for the citizens of VA. A large amount of debt will be taken on by Dominion (already a highly leveraged company) and thousands of landowners will be forced to have their property disrupted. Virginia’s special resources such as National Forests, the Appalachian Trail and the Blue Ridge Parkway will also be disrupted by pipeline construction.

          The ancient aquifers in the Shenandoah Valley which provide freshwater to million of Virginians are also vulnerable to the blasting and excavation required to construct the pipeline. Before we know it, we will be dealing with water in the same way we are now fretting about oil and natural gas.

          This is an opportunity for effective government action. The federal government is the only one with a large enough purview to sort out what is in the highest good of the competing corporations and the citizens of West Virginia, Virginia and North Carolina. Unfortunately, their track record as an objective arbiter of the long-term good is a bit tarnished.

          1. LarrytheG Avatar
            LarrytheG

            here’s a nice map that pretty much shows the pipelines and owners in Virginia..

            it’s also showing Dominion with a line in Pennsylvania

            http://www.niskapartners.com/wp-content/uploads/2010/05/GasStorageNA_mapAPR2010-PITCH.pdf

      2. Rowinguy Avatar
        Rowinguy

        Dominion Resources, Inc., as Jim has noted, has had a big experience in the gas pipeline and transportation business. They once owned Virginia Natural Gas (VNG) which is now owned by AGL and being acquired by Southern Co. There used to be a very big pipeline company in the Midwest, known as Consolidated Natural Gas, that had at one time been part of Standard Oil. DRI bought it in 2000, not long after they divested VNG.

        So, the parent of Dominion Virginia Power has long experience in the gas business. Not a new endeavor for them at all. As a co-owner of the proposed ACP, it will have a supply for DVP power plants (a very good customer to have, ha ha) and its co-owners, Duke and Progress Carolina, will likewise be able to supply their gas fired power plants and other gas distribution companies operating in Virginia and NC.

        Motive? Money

  3. LarrytheG Avatar
    LarrytheG

    I guess I differentiate between someone on your property to provide you with a service that you voluntarily wanted verses someone coming on your property for something you don’t want and did not agree to.

    Under what circumstance can someone come onto your property for a purpose you do not agree to?

    VDOT can.. they have a public purpose – no profit motive.

    1. DonR Avatar
      DonR

      Under what circumstance can someone come onto your property for a purpose you do not agree to?

      VDOT can.. they have a public purpose – no profit motive.

      Why would you think that?

      “The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      Is there anything in the fourth amendment that excludes entities with a public purpose or organizations with no profit motive? The amendment was aimed at the government and government entities with public purposes and no profit motive.

      1. LarrytheG Avatar
        LarrytheG

        Govt does have the right to use ED for a public purpose. The right to survey the property before is not in the Constitution but I suspect it would not be viewed as search and seizure …

        got me to wondering…. why not use drones and aerial photos?

    2. TomH Avatar
      TomH

      Larry,

      Several good maps of Virginia’s natural gas lines can be found at:

      http://www.virginiaplaces.org/transportation/gaspipeline.html

      1. LarrytheG Avatar
        LarrytheG

        Tom I’ve seen that one and it’s pretty good but does not show ownership.

        there is one that shows ownership here:

        http://www.niskapartners.com/wp-content/uploads/2010/05/GasStorageNA_mapAPR2010-PITCH.pdf

        and in the 2014 Virginia Energy Plan on page 52

  4. DonR Avatar
    DonR

    Let me see if I have this right …

    A judge who was voted into office without any form of merit commission by the General Assembly including attorneys whose cases he will decide found that the General Assembly was just fine with its law. That same judge will again have to be voted into office without a merit commission by that same General Assembly including the lawyers whose cases he hears when his term ends.

    Virginia – America’s Most Corrupt State TM – is the only state where judges are directly elected by the legislature including practicing attorneys without any form of merit commission. Virginia is only one of six states that have no limits on campaign contributions by any entity – including huge for-profit enterprises that are regulated by the state.

    We could probably vote the bums out if we could create the kind of voter outrage needed to tip some elections. Of course, Virginia is the fifth most gerrymandered state, holding off-year elections with America’s most restrictive rules for getting on the ballot as a third party.

    Think about this the next time you hear some ass-hat state legislator in Richmond piously speaking in hushed tones about Mr. Jefferson. If Jefferson were here he’d punch those two faced legislators in the nose. Check that. No, he wouldn’t. Jefferson was pretty much an effete wimp. No, he’d call the big man from Mt Vernon down to Richmond. And our brave legislators would run like scalded dogs to the Atlantic Ocean and then they’d start swimming for England. Is it weird that this is a recurring dream of mine?

  5. LarrytheG Avatar
    LarrytheG

    oh.. I do think I hear Mr. Trump off in the distance on Don’s TV….

    although I’m totally with Don on some of what he is saying.

    the more I hear “the Virginia Way” – the more I get heartburn
    😉

    1. TomH Avatar
      TomH

      Larry,

      This is the map of major gas transmission lines in Virginia (showing ownership) that I was trying to direct you to before:

      https://www.dmme.virginia.gov/DE/LinkDocuments/2014_VirginiaEnergyPlan/9Section3NaturalGas.pdf

      Look on page 9 figure 3-8

      1. LarrytheG Avatar
        LarrytheG

        thanks…

        Figure 3-8: Major Natural Gas Transmission Pipelines in Virginia15

        it shows excising pipelines that connect to the shale gas sources as well as connections to where Dominion has their gas plants.

        What Dominion is proposing is not public necessity… it’s a corporate venture for profits… and that goes back to whether they should be allowed to use eminent domain.

        If the opponents get enough funding and appropriate legal help – I believe they’re going to litigate on this basis…

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