Last August, Craig Vanderhoef, a former Navy captain who retired to a farm near Afton in Nelson County, got a fateful letter from Dominion Resources.
The Richmond-based utility wanted to survey his property to help plot a route for a $5 billion Atlantic Coast Pipeline that would transport natural gas from hydraulic fracturing (known as “fracking”) in West Virginia to the coast. It would stretch 550 miles over the Appalachian Mountains southeastward into Virginia and North Carolina.
Vanderhoef wrote two letters back saying no. Then, at 9:30 p.m. on Jan. 16, he got a nasty surprise. A sheriff’s deputy knocked on his door to serve him with legal notice that he was being sued by Dominion, which was demanding access to his property. “Now, I have to get a lawyer,” said the 72-year-old.
Dominion plans to sue 240 Virginia landowners to force survey access for the pipeline. Nelson County residents are not used to industrial projects — or being pushed around. Grass-roots groups quickly protested. The utility lost points locally when it mistakenly filed suit against 14 local property owners, including David Brooks, the county sheriff.
The dilemma strikes at the heart of eminent domain issues. Individual property rights had previously been regarded as sacrosanct in a state that worships Thomas Jefferson. But the situation has changed as fracking stirs a race for markets and profits.
The key legal point in the controversy is a 2004 law passed that few thought mattered much. It states that a pipeline firm may enter private property for survey work without permission. Whether that law is constitutional may decide the entire issue. While there has been no such legal test, one may be forthcoming. On Feb. 5, U.S. District Judge Michael Urbanski heard arguments in a lawsuit filed by several landowners. He said he will rule soon, adding that it is a “fascinating and important case.”
Dominion argues that it is a “public service company” and has the right to compel recalcitrant property owners to allow surveys. Doing so doesn’t constitute taking of property and isn’t condemnation, the utility claims.
The state’s 2004 pipeline law has plenty of problems, says Joe Waldo, a property rights lawyer with the Norfolk firm of Waldo & Lyle who is offering to represent Nelson County property owners pro bono. “People just can’t go on your land,” says Waldo. Besides the constitutionality question, there are procedural flaws, he claims.
He questions how Dominion, which plans the project with Duke Energy and Piedmont Natural Gas, both based in Charlotte, and AGL Resources of Atlanta, can force its way when it hasn’t even filed the project with the Federal Energy Regulatory Commission, the lead regulator. “They can’t come on property until FERC says, ‘Hey, you got a project here,’ ” Waldo says. Dominion says it won’t file for a FERC permit until late this summer and doesn’t need to jump more procedural hurdles.
The same battles are being repeated in other parts of Virginia and the nation. Similar lawsuits have been filed in western Virginia, where Pennsylvania and Florida energy firms plan to build the 330-mile Mountain Valley natural gas pipeline. Land rights are at the center of disputes in eastern Texas, where TransCanada wants to build the better-known Keystone XL pipeline to take Canadian shale oil to the U.S. Gulf Coast.
In Virginia, top officials such as Gov. Terry McAuliffe (D) applaud the projects, believing they will spark new industries in the more impoverished sections of the state. The Atlantic Coast Pipeline would create 2,873 construction jobs from 2014 to 2019 and then 271 permanent ones, Dominion says. Landowners have a point when they note that the number of real jobs is quite small.
Another issue is whether some of the natural gas carried by the Atlantic Coast project will be used for the “public” purpose — such as serving state residents — or whether it will be exported. The pipeline includes a leg to a deepwater port area in the Chesapeake Bay. Dominion insists that no gas would be exported and that the extension is needed to serve local customers of its partner, AGL Resources. By coincidence, Dominion plans to export natural gas not far away at a facility it plans to retrofit at Cove Point, Md., on the Chesapeake Bay.
Exports or no, the pipeline is going down badly in Nelson County. Vanderhoef fears that it will forever transform the retirement farm he loves and end plans for his daughter to build a home on his land. “This will have an economic impact and a family impact on us,” he says. Chalk it up to the controversial fracking that is a game-changer in more ways than one.
The writer blogs at Bacon’s Rebellion and is a participant in The Post’s Local Blog Network.