Alast-gasp legal attempt to slow the Mountain Valley Pipeline is now before the U.S. Supreme Court.
Last Wednesday, the owners of property that was taken by eminent domain for the divisive project filed an emergency injunction request, asking the Supreme Court to pause construction while their case is heard by a lower court.
Although it may be too late to pose a significant setback for the nearly completed pipeline, the request frames the issue of eminent domain in a broader context that could affect future cases.
“From the Bronx to the Appalachians, from the inner cities to John Denver’s country roads, these forced takings have been dismal failures,” Roanoke attorney Mia Yugo wrote on behalf of the landowners.
Filed just two days before the death of Sandra Day O’Connor, the application quotes the former Supreme Court justice as saying that government-sanctioned seizures of private land for economic gain “have resulted in abandoned malls and failed projects, all in the name of efficiency and progress.”
In a legal odyssey that began nearly four years ago, the owners of three pieces of property — in Montgomery, Roanoke and Franklin counties — contest Mountain Valley’s use of eminent domain.
Their lawsuit contends that Congress improperly delegated its power to seize private land to the Federal Energy Regulatory Commission, which oversees the construction of natural gas pipelines. FERC then gave that eminent domain authority to Mountain Valley, after finding there was a public need for the gas it will transport.
While eminent domain is often used by government agencies for public projects such as power lines and highways, it has more recently been expanded to include private ventures such as the one building the 303mile pipeline.
Mountain Valley was allowed to seize about 300 parcels of private land in Southwest Virginia in order to begin construction in early 2018. Landowners were paid after the fact and, in some cases, the process of deciding just compensation has yet to be resolved.
In asking the Supreme Court to pause construction on the three properties at issue, Yugo argued that Congress violated the Constitution when it passed the Natural Gas Act, which delegated the power of eminent domain to unelected government officials and private companies.
“The Constitution does not contort itself to achieve progress, pipelines or profit margins,” the petition states. “The Constitution does not account for such concerns. But it cares a great deal about individual liberty.”
The landowners — Cletus and Beverly Bohon in Montgomery County, Robert and Aimee Hamm in Roanoke County and Wendell and Mary Flora in Franklin County — would be irreparably harmed if construction continues on their property while their lawsuit is pending, the petition asserts.
While acknowledging that the odds of winning an injunction were not good, Yugo emphasized that the underlying case, currently before the U.S. Court of Appeals for the District of Columbia, will continue nonetheless.
In general, such injunctions have been granted “quite infrequently” by the Supreme Court, according to Xiao Wang, a professor at the University of Virginia who heads the law school’s Supreme Court Litigation Clinic.
But Wang said there has been a shifting landscape in recent years in which the high court has been more willing to consider emergency litigation. Further, some of the current justices have shown an appetite for the kind of non-delegation questions raised by Yugo
“It is thus possible that those factors would give these plaintiffs a greater prospect for relief,” Wang wrote in an email.
Eminent domain has long been a hot topic that can cross traditional political lines. O’Connor, for example, often sided with the Supreme Court’s conservative bloc while serving as its first female justice.
But in one of her final cases, she dissented in a 5-4 ruling that allowed the taking of personal property to allow private developers to build shopping plazas, office buildings and other facilities — warning that the majority had unwisely ceded yet more power to the powerful.
“The specter of condemnation hangs over all property,” O’Connor wrote at the time. “Nothing is to prevent the state from replacing … any home with a shopping mall, or any farm with a factory.”
A Mountain Valley spokeswoman declined to comment last week on the injunction request, citing a policy of not talking about pending litigation.
As the federal lawsuit continues to move slowly through the courts, construction crews have been at work since July. For years, work was delayed by legal challenges from environmental and community groups.
The groups argued — often successfully to a Richmond-based federal appeals court — that government permits issued for the pipeline did not adequately protect the environment.
In the early years of construction, the Virginia Department of Environmental Quality cited Mountain Valley with more than 300 violations of erosion and sedimentation control regulations. But there have been no findings of noncompliance since work resumed this year, DEQ spokeswoman Irina Calos said Friday.
After facing rising costs and repeated delays, Mountain Valley had a turn in fate.
In late May, Congress passed a law that fast tracked a project it declared was in the national interest. The Supreme Court — acting in a different case than the one now before it — lifted a stay on construction that had been issued by a lower court two months later
When it resumed work, Mountain Valley still had a long way to go to meet its goal of completing the $7.2 billion project by the end of this year. In October, it pushed its target date for having natural gas flowing through the buried pipeline to the first quarter of 2024, the latest of many delays.
A recent construction update posted to the company’s website showed progress, however.
As of Nov. 26, construction crews had completed 321 stream and wetland crossings — one of the more time-consuming aspects of the job — out of 428 that remained when work resumed over the summer. Just 92 of the crossings had been completed through Oct. 1.
Meanwhile, Bloomberg Law News reported Friday that the lead partner in the joint project, Equitrans Midstream Corp., was in the early stages of considering a sale. Citing people familiar with the matter, the article said a potential sale would make sense, with the pipeline close to completion, and would likely attract interest from industry peers.
Equitrans CEO and Chairman Thomas Karam, who will step down at the end of the year, has already received a huge financial benefit from the project.
According to a September filing with the U.S. Securities and Exchange Commission, the company’s board decided to award Karam a $7.5 million bonus. The filing cites “Mr. Karam’s relentless efforts towards navigating legal and regulatory setbacks to the MVP project” to a successful end.