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A judge says the attorney general’s office has been aiding and abetting Big Coal in its fight not to pay landowners for the gas it has taken from them.
Monday, June 10, 2013
A federal judge last week said she was shocked an assistant state attorney general is aiding big coal in a court battle against property owners in Virginia’s coalfields who are seeking to be paid for the gas the companies have taken.
U.S. Magistrate Judge Pamela Meade Sargent found that Assistant Attorney General Sharon Pigeon, who advises the Virginia Gas and Oil Board, was assisting the defense. Sargent wrote: “Shockingly, these emails show that the Board, or at least Pigeon, has been actively involved in assisting EQT and CNX with the defense of these cases, including offering advice on and providing information for use on the Motions before the court.”
Shocking, but not surprising, given Attorney General Ken Cuccinelli’s cozy relationship with the coal and gas companies. So far this year, Consol (CNX) has given Cuccinelli’s gubernatorial campaign $86,000, according to the Virginia Public Access Project.
The AG’s office responded to the judge’s astonishment: “Our office’s role is not to provide advice to any private party in this case. Our office intervened in the case for the limited purpose of defending the constitutionality of the Virginia Gas and Oil Act.”
Pigeon’s emails (published on TriCities.com) undermine that statement.
When pressed to explain the emails, Cuccinelli’s spokesman, Brian Gottstein, said in an email the plaintiffs’ lawyers tried to have the act declared unconstitutional, so the attorney general intervened to defend the law. Without it, the owners would not share in royalities.
“We did not provide legal advice to either side,” Gottstein said. “However, communications between the senior assistant attorney general and attorneys for the gas operators concerned the interpretation of the Gas and Oil Act because we had a common interest in protecting the law. This is an appropriate practice under the law.”
Judge Sargent did not view the correspondence in the same favorable light.
The Gas and Oil Act allows natural gas companies to extract methane gas without landowners’ permission as long as they pay for what they take. But they haven’t. The Bristol Herald Courier found in 2009 that royalties that were supposed to go to property owners languished in unaudited escrow accounts; it was difficult even to determine if the correct amount of money was being set aside. To get their rightful compensation, landowners needed to sue.
One had already. In 2004, the Virginia Supreme Court found methane gas is a distinct mineral from coal, meaning even if property owners years before had signed away coal rights, they retained ownership of the gas and should be compensated. The Virginia Gas and Oil Board refused to view the ruling as precedent.
Following the newspaper’s Pulitzer Prize-winning investigation, lawmakers in 2010 enacted emergency legislation amending the law to reflect the court’s decision. Which should have freed up the funds, and would have, if the AG’s office had pressed it to do so.
Instead, three years of litigation have followed in which individual cash-strapped landowners have sought the unity of a class-action suit to fight Big Coal’s army of attorneys. That Cuccinelli’s office is a unit of that army was not known until Sargent’s recommendation for a class action was issued last week. Shocking, indeed.
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