Several natural gas pipelines are being proposed for our region. Most of these pipelines are expected to be 36-inches to 42-inches in diameter. As an example, the Mountain Valley Pipeline will require 75 feet of permanent easement and an additional 50 feet of temporary easement during the construction.
If your land is affected by a pipeline project, and if you are approached by someone from a pipeline company, DO NOT SIGN ANYTHING without first getting legal advice.
What is required for the projects to proceed?
Natural gas pipelines must obtain approvals from a number of state and federal agencies, including the Federal Energy Regulatory Commission (FERC). FERC is the federal agency with primary jurisdiction over interstate natural gas pipelines.
Before FERC can issue the required certificate of public convenience and necessity, it must find that the public benefits of the project outweigh the adverse impacts. FERC must consider the economic impacts of the project, such as whether the pipeline enhances competitive gas transportation alternatives, the possibility of overbuilding, subsidization of the pipeline by existing customers and the potential for overcapacity.
FERC must also consider the environmental impacts and the unnecessary exercise of eminent domain. Many pipeline companies conduct a “pre-filing” process prior to submitting a formal application for FERC review. During both the pre-filing process and certificate application periods, FERC will:
(1) review the project for environmental and other concerns;
(2) evaluate the need for the pipeline;
(3) evaluate proposed facility locations; and
(4) evaluate overall impacts of the construction.
Will FERC consider environmental concerns?
The National Environmental Policy Act (NEPA) requires FERC to review the environmental impacts of the proposed project, most likely in a comprehensive Environmental Impact Statement (EIS), before issuing a certificate. The EIS must include alternatives to the project and must analyze the project’s impact on the environment. The public has the right to comment during both the pre-application “scoping” process and on the draft EIS.
How can I challenge the pipeline or make my views known during this process?
There are several ways to make comments and to challenge the pipelines. FERC will solicit and accept comments during its review of the environmental impacts and economic aspects of the pipeline projects. The Greenbrier River Watershed Association, West Virginia Highlands Conservancy and other groups will, with help from economic experts, environmental scientists and lawyers at Appalmad, prepare extensive comments and participate in all phases of the regulatory process.
There is also the possibility of litigation, if necessary to ensure compliance with the law.
You can sign onto comments from these groups or submit comments of your own with help from these and many other groups that are becoming involved in this issue.
Additionally, if you are interested in protecting your property rights either before or during the eminent domain process, you need to consult with a lawyer.
What about surveys?
Mountain Valley Pipeline (MVP) is currently requesting survey permission from property owners for various routing options within a “study corridor.” If FERC grants the certificate to MVP, the pipeline will acquire the right of eminent domain. However, MVP has not applied for the certificate and the applications take one to two years for FERC to process. Until then, a landowner may exclude anyone from his or her property by posting, fencing or just telling them to leave unless they have a deed, lease, right of way, right of eminent domain or some other interest that would include the right to conduct surveys.
A pipeline company’s right to survey must be backed by a legal document. If the surveyor cannot produce a document, you do not have to let him or her onto your property. There is a statute in West Virginia that addresses surveying by corporations that are seeking the power of eminent domain. That statute, contrary to what you may hear from pipeline representatives, allows surveying only for projects determined to be “for public use,” a determination that has not been made by a West Virginia court for these proposed pipelines.
If a pipeline representative asks you to sign a document allowing him or her onto your property, do not do so until you obtain legal advice.
Again, do not sign anything before talking to a lawyer.
Will eminent domain come into play?
If FERC approves the pipeline, then the pipeline company may go to federal court and use eminent domain to acquire rights of way that the landowners are unwilling to grant. There is no right of eminent domain granted by FERC until it uses a certificate of public convenience.
In all events, landowners must be fairly compensated for the loss of their property rights. We recommend that landowners get legal representation before signing any agreement.