How county pipeline case in Va. Supreme Court could shape eminent domain law
RICHMOND - The Augusta County pipeline case between landowner Hazel Palmer and the Atlantic Coast Pipeline, LLC, made its way to the Supreme Court of Virginia last Wednesday, where the court heard oral arguments.
What happens from here with the court's ruling could be very important in resolving important issues surrounding Virginia's eminent domain law, said professor Molly Brady, a property law expert at the University of Virginia School of Law.
Two important questions on the pipeline have come to light from the case, she said, which involves 83-year-old widow Hazel Palmer and her property that the pipeline is routed to intersect. She's the fourth generation in her family to own the land, which sits just below the Appalachian Trail and Blue Ridge Parkway.
For one, the court will have to wrangle with how an individual's right to property is defined. If property is recognized overly narrowly as a "fundamental right," that could shift many zoning cases currently handled by local governments to judges for heavier scrutiny, which could clog up court dockets.
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At the root of the situation is Virginia's constitutional amendment enacted in 2013 that tightened eminent domain law, which said, "That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use."
The court may see the Palmer case as an opportunity clarify what property being a "fundamental right" means, Brady said — “we’re awaiting their guidance on the effect of that 2013 amendment."
The other important question Palmer's case raises is that of the right of the Atlantic Coast Pipeline, acting as a Virginia natural gas company, to enter private property without permission. Can only Virginia public service companies enter private property without permission, or does that right extend to natural gas companies, like the Atlantic Coast Pipeline?
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There is a constitutional provision that says foreign corporations may not be able to exercise the right of public service enterprises. The Atlantic Coast Pipeline is technically a Delaware company, not a Virginia company, so there is a statutory issue the court needs to clarify, Brady said.
This point wasn't raised in trial court though, so she doesn't think the state's supreme court will be able to rule on it, however, based on the justices reaction to Palmer's attorney, Henry Howell, bringing it up during the oral argument last week. You can listen to the full oral argument from last week here.
The Supreme Court of Virginia granted Palmer's appeal in September, taking issue with an Augusta County Circuit Court judge's ruling that surveyors could come on her property.
Howell has argued that both the U.S. and Virginia constitutions "shield" Palmer from the abuse of the power of eminent domain, according to a press release put out by Friends of Nelson, a pipeline opposition group.
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Dominion spokesperson Aaron Ruby has pointed out that circuit courts all across the commonwealth — in Augusta, Nelson, Nottoway, Buckingham, Cumberland, Prince Edward, Chesapeake, Dinwiddie, Southampton, Suffolk and Brunswick have all ruled in favor of the Atlantic Coast Pipeline's right to enter property. And in 2015, a U.S. District Court ruled in favor of the pipeline group, concluding that the Virginia law in question "does not deprive a landowner of a constitutionally protected property right."
“We’re confident that the Virginia Supreme Court will uphold the Circuit Court ruling in Augusta County,” Ruby has said.
What's clear, Brady said, is that pipelines are the next legal frontier for eminent domain law.
“In the 1900s it was railroads, in the 1960s it was highways and now it’s pipelines,” she said.