Pipeline opponents face long odds in eminent domain fight

Marvin Winstead received notice two years ago that his 70-acre farm in eastern North Carolina could be in the path of the proposed Atlantic Coast Pipeline, slated to transport natural gas from the Marcellus Shale region through the Virginias and into the state.

An “environmentally concerned person” who had nonetheless allowed his Sierra Club membership to lapse, Winstead was wary from the beginning about the pipeline, which would enter the state near Roanoke Rapids and end in Robeson County, skirting the I-95 corridor.

Now the 65-year old, who lives in the house built in 1927 where he grew up, is actively fighting the project with a long list of grievances. It includes safety risks, hastened climate change, and the potential removal a 100-year old pine tree that was a favorite of his mother’s (he calls it the “mother tree.”)

Most of all, though, Winstead objects to the pipeline company’s powers of eminent domain, which — if the project gains approval from federal regulators next year — could force construction on his farm whether he likes it or not.

“This pipeline is a for-profit venture,” he said. “This is a blatant abuse of private property laws.”

Roughly 1,000 landowners live along the pipeline’s potential route in North Carolina. Though far from all share Winstead’s zeal, experts across the political spectrum say there’s limited recourse for any of these property owners at this stage of the project.

‘It’s not winnable’

Translated from the Latin dominium eminens as “supreme lordship,” the age-old concept of eminent domain appears in the last clause of the Fifth Amendment: “nor shall private property be taken for public use, without just compensation.”

Jason Campbell, an attorney with a law firm that handles eminent domain cases across the state, says many associate the “takings clause” with local or state governments, who can forcibly buy private property to fulfill a public purpose, such as a road, park or school.

“Most of us agree that’s OK,” he said. “A lot of people, however, are surprised when they find out that North Carolina has delegated to private utilities the power to condemn land for a money-making purpose.”

North Carolina is not alone. Over the years, the U.S. Supreme Court has broadly defined “public use” to encompass a number of for-profit objectives, including rights-of-way for utilities to run transmission lines and pipelines.

In this case, the utility’s aim isn’t complete ownership and control of property after providing compensation. Instead, it seeks to make a one-time payment to purchase an easement to build its project, while allowing the owner continued use of the land.

To ensure a private project like a pipeline meets the test of public use, the utility can’t force sales of easements until it has received a “certificate of convenience and public necessity” from a regulating entity.

But Campbell says after the certificate is granted, the property owner has virtually no power to stop the taking. Once the developer files to acquire an easement, the landowner has only 10 days’ notice to show there is no public necessity in a county civil court.

“It’s not winnable,” he said. “Unless your uncle happens to be the judge, you are going to lose those hearings.”

The Federal Energy Regulatory Commission, FERC, is the three-member body that must issue the Atlantic Coast Pipeline its certificate. The decision, expected in about a year, is based on the project’s necessity and environmental impact.

However, the company does have a motive to buy easements from willing sellers in the meantime: FERC also considers how many land condemnations will be necessary in evaluating the company’s certificate application.

Furthermore, once condemnation authority is invoked, civil court proceedings to determine compensation can take months, particularly in the small rural counties the pipeline is expected to traverse. That could delay the project’s start date well beyond the 2019 target.

“We’ll work very hard to try to reach a mutually-acceptable agreement with the landowner,” said Aaron Ruby, a spokesman for Dominion, the company developing the project. “We want to put as many pieces of the construction process as we can in place, so that we are ready to begin once we receive all of our necessary government approvals.”

Ruby said Dominion has already signed easements with more than half of the property owners along the entire route, including hundreds in North Carolina. “Eminent domain is always an absolute last resort.”

‘Pipeline roulette’

Critics say even when eminent domain authority to take property isn’t used explicitly, the pipeline company has the clear upper hand over landowners, especially in North Carolina where pipeline cases are relatively rare.

“Property owners are working in something of a vacuum,” Campbell said. “There is a vast disparity of knowledge between the property owner and the company putting in the pipeline. [It’s] so great that it’s almost inherently an unfair negotiating process right off the bat.”

Often neither the landowners nor their attorneys know what risks they are undertaking or what damages they should seek, Campbell said, and the pipeline has little incentive to be forthcoming. “I have yet to see a condemning authority that doesn’t minimize the impacts of their easements.”

For example, Ruby of Dominion said, “the only restrictions on the use of the right of way are building structures and planting trees. Otherwise the land can continue to be used as it always has, and the pipeline goes virtually unnoticed.”

From a safety standpoint, that assertion could well be true for any one property owner. But there are risks, according to Rebecca Craven of the nonprofit Pipeline Safety Trust, which doesn’t take positions on particular pipeline projects.

“The possibility of a natural gas pipeline exploding in any one place is really, really low,” said Craven, the organization’s program director. “But the consequences if it happens can be catastrophic.”

Federal data show that in the last 20 years, natural gas pipeline failures have caused over $1.5 billion in damage, killing 46 people and injuring nearly 200. Forty accidents, some fatal, have occurred in 2016 alone.

Recently a judge announced plans to prosecute California utility Pacific Gas & Electric for its role in one of the most damaging accidents in recent years: an explosion in San Bruno that killed eight people and destroyed 38 homes.

Craven said injury or death isn’t the only concern for landowners. “Catastrophic is sort of relative. If it’s your house, even though it might be the only house that’s destroyed, it’s life changing.”

Compounding risks to landowners is a dearth of siting standards. While federal safety guidelines define a distance from a pipeline within which one couldn’t survive a explosion, they don’t dictate where a new pipeline can be built.

Based on its diameter and pressure in North Carolina, the Atlantic Coast Pipeline’s potential impact radius is about 943 feet. Its proposed route in Nash County runs about 250 feet from Marvin Winstead’s home.

Winstead has chosen to take risks before, such as when he went sky diving as a young man. But, he said, “I don’t want to play pipeline roulette.”

Saving the mother tree

For all their handicaps in the pipeline’s development, property owners do have some clout.

Protests from a group of landowners in Cumberland County, coupled with environmental concerns from federal officials, have already resulted in the development of a 26-mile alternative route near Fayetteville.

Dominion says it’s willing to move the line’s route wherever it can — either within an individual property or away from a property altogether. “We’ve made more than 300 route adjustments to address individual landowner requests,” Ruby said.

Widely viewed as a “rubber stamp” by advocates and unknown to most Americans, FERC could seem impervious to landowner concerns. Yet the agency’s only certificate rejection in recent memory, of the Pacific Connector in Oregon, was based in part on the pipeline’s plans to use eminent domain with more than 630 property owners.

Pointing to this decision, Craven of the Pipeline Safety Trust said that means landowners could have leverage with FERC if there were enough of them.

“But that’s really hard, because there are a lot of good reasons to try and reach an agreement with an operator,” she said. By negotiating an easement, “they can then move the creek crossing, or avoid grandma’s grave, or get it further from their well.”

Thus, though his best hope for protecting his 100-year-old pine might be to work with the pipeline company, right now Marvin Winstead is still trying to save the mother tree the hard way: by getting hundreds of other landowners to join his cause.

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