A long-running legal battle over the Mountain Valley Pipeline’s power to take private land gained new life Monday from the U.S. Supreme Court, which revived a lawsuit filed by property owners.
In a brief order, the high court vacated a U.S. District Court judge’s earlier finding that he lacked jurisdiction to hear a case that challenged the Federal Energy Regulatory Commission’s delegation of eminent domain authority to the private venture.
The lawsuit brought by six landowners in Franklin, Montgomery and Roanoke counties was sent back for a trial on its merits.
“This was an uphill battle and today marks a huge win for landowners,” said their attorney, Mia Yugo of Roanoke. The high court agrees to hear only about 1% of the thousands of requests for appeals it receives each year.
Yugo
In contesting the condemnation of their land for the natural gas pipeline, the plaintiffs argued that eminent domain — which should be a legislative power — was improperly delegated by Congress to FERC.
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Under the Natural Gas Act, FERC can then allow private companies to take land if it finds a public necessity for their projects, which the commission did for Mountain Valley in 2017.
It was unclear what immediate impact the Supreme Court’s decision would have on Mountain Valley, which has already taken possession of the land that many property owners refused to sell for the controversial, 303-mile pipeline.
One possibility for the landowners — Cletus and Beverly Bohon of Montgomery County, Wendell and Mary Flora of Franklin County and Robert and Aimee Hamm of Roanoke County
— would be to ask the court to delay construction while their lawsuit is pending.
Such a step is being considered but no decision has been made, Yugo said Monday.
Rather than contest FERC’s decision in the Mountain Valley case alone, the lawsuit makes a broader attack on the agency’s authority. It argues that Congress violated the separation of powers by delegating to FERC a power that it was unwilling to exercise on its own.
“Eminent domain is a legislative power, which means only Congress can wield that power,” Yugo said. “And if the project is this unpopular — as it is in Virginia — any congressman voting to take this land would have to face the voters in the next election.”
“That is why Congress delegated such sweeping power to the agency in the first place — to avoid accountability to the electorate.”
In sending the lawsuit back for a trial, the Supreme Court cited a decision it made 10 days earlier, finding that U.S. District Courts can consider constitutional challenges to administrative proceedings before the agencies involved issue final rulings.
Although the consolidated case dealt with decisions made by the U.S. Securities and Exchange Commission and the Federal Trade Commission, it paved the way for a similar case to be made against FERC.
“The question presented is whether the district courts have jurisdiction to hear those suits — and so to resolve the parties’ constitutional challenges to the Commissions’ structure,” the Supreme Court held. “The answer is yes.”
A district court judge in Washington, D.C., where the Mountain Valley case was first filed, ruled in 2020 that he lacked jurisdiction under a law that required aggrieved parties to seek a rehearing before FERC.
If the commission refuses to change its decision, as it did in 2018, an appeal can be made to the U.S. Circuit Court of Appeals in Washington. That happened the following year, and the appellate court upheld FERC’s contested findings.
But in their appeal to the Supreme Court, the landowners argued that the law unfairly forced them to make their separation of powers argument to the very agency whose authority they were contesting.
The Supreme Court’s ruling in their favor reversed years of precedent. When U.S. District Judge James Boasberg ruled against the Bohons, Floras and Hamms in May 2020, he wrote that “this case presents the latest trickle in a veritable flood of litigation” against Mountain Valley.
Other legal fights, in which environmental groups have challenged government permits issued to Mountain Valley, have stalled construction of the $6.6 billion project.
Those proceedings, mostly before the 4th U.S. Circuit Court of Appeals, focus on whether various agencies took proper steps to protect the land and water from pipeline construction. Over the years, Mountain Valley has been cited repeatedly by regulators in West Virginia and Virginia for failing to control muddy runoff from work sites along steep mountain slopes.
By comparison, the case decided by the Supreme Court on Monday deals with constitutional questions about the structure of FERC.
Mountain Valley spokeswomen Natalie Cox declined to say what practical effect the decision might have on construction, which the company says is mostly completed.
“Today’s action is procedural and will lead to additional briefing at the D.C. Circuit Court,” Cox wrote in an email. “However, as this remains pending litigation, we are unable to provide additional details at this time.”
Before starting work on the pipeline, which starts in northern West Virginia and runs through Southwest Virginia to connect with an existing pipeline near the North Carolina line, Mountain Valley acquired easements through private land by striking agreements with many property owners.
Those who refused to sell — about 300 people in Southwest Virginia — were sued by the company, which used its power of eminent domain to take immediate possession of the land in early 2018.
“Our clients have fought for many years to get their ‘day in court’ on the merits of their constitutional claim,” Yugo said. “We couldn’t be happier with the court’s decision.”
