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Pipeline Brings a Property Rights Fight to Virginia

Monday, October 3, 2016 9:17
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Eighty-three-year-old Hazel Palmer could become the Suzette Kelo of Virginia—the face of a property-rights revolution. She has a piece of land in Augusta County along the proposed route of the 600-mile, $5 billion Atlantic Coast Pipeline. It has been in her family for four generations, and she does not want surveyors for the pipeline traipsing across it—especially if said surveying leads to what she fears: a staging area for drilling inside her property line.

A state law says the pipeline’s surveyors don’t need her permission to step onto her property. The state’s constitution might say otherwise. Virginia’s Supreme Court will decide the matter.

The pipeline has generated ferocious opposition from environmentalists and those who don’t want it running through their backyards. The latter cohort includes a lot of scrappy citizen-activists along with some well-heeled interests, and they have raised a host of objections to the project—some more persuasive than others.

Palmer probably wouldn’t have a snowball’s chance herself, if it were not for an amendment supported by 75 percent of the voters in 2012. Courts have repeatedly ruled against property owners who refuse entry to natural-gas surveyors.

In 2004 the commonwealth passed legislation explicitly granting natural-gas companies authority to enter private property for “examinations, tests, land auger borings, appraisals and surveys without the written consent of the owner.”

Nor is that anything new. A 1782 law allowed surveyors to enter private property to survey land for the location of public roads, and forbade anyone to “stop, oppose, or hinder” them. Similar laws passed in 1819, 1860, and 1944 granted the same power to turnpike companies, “internal improvement” companies, and railroads.

As a general rule, the right to property—the right to the use and benefit of your land, house, car and so forth—entails the right to keep people out of it. “This is mine” necessarily implies “it’s not yours.”

But there have always been exceptions to this “right to exclude,” and you can easily see why: If Smith’s house is on fire, Smith’s neighbors should be able to enter his property to keep the fire from spreading to their own homes.

If the neighborhood children accidentally toss a frisbee onto Smith’s lawn, most people would say they should be able to retrieve it without being arrested for trespassing. If the sheriff has a warrant, Smith can’t avoid arrest by forbidding the sheriff to step on his land.

Lawyers for the pipeline—a joint project of Dominion, Duke, and two smaller companies—therefore say that Palmer has no right to exclude the surveyors in the first place. And even if she did, they continue, the minor inconvenience of having surveyors walk across her land does not qualify as a “taking” of private property, let alone one that requires compensation. No title of ownership is being transferred, and the surveying will not keep Palmer from using and benefiting from her property: no harm, no foul. Finally, in the event that the surveyors do inflict any damage to her property, they will have to pay for it.

Palmer’s lawyers assess the inconvenience as more than minor: “A flagging crew would clear a path through the property and flag the proposed route. A survey crew would survey the property. An environmental crew would collect environmental data by various methods, including digging into the property with hand augurs to look for wetland soils. A cultural resource crew would use hand shovels to dig 1.5 foot wide by 1.5 foot deep holes every 50 feet along the proposed pipeline route looking for items of cultural interest, which, if found, would be dug up and taken from the property for analysis. … All told, five crews totaling around 20 people would enter the property over Ms. Palmer’s objections.”

But again, the pipeline attorneys says: so what? All 50 states have statutes similar to Virginia’s, they point out, and courts have upheld the authority of utilities, turnpike authorities, and other entities to conduct surveys on private property without permission more than two dozen times, because such authority has been part of the common law for, literally, centuries.

To which Palmer could say: so what?

What other states authorize is irrelevant in the face of Virginia’s property-rights amendment, in the same way that Chinese censorship is irrelevant to guarantees of free speech here in the U.S. Likewise, the appeal to tradition—those laws passed in decades and centuries past—also holds little weight. Tradition and legal precedent were the rocks upon which defenders of state-level bans on racial intermarriage and gay marriage rested their cases. If tradition and precedent trumped everything else, then those laws would remain in force. They don’t.

Virginia’s property rights amendment, like similar measures all across the country, bubbled up to the surface in the wake of the Supreme Court’s awful decision in Kelo v. New London.

In that case, the high court ruled the Constitution’s requirement that government take private property only for “public use” really meant “public purpose,” and public purpose meant public “benefit.” Seizing Suzette Kelo’s property and giving it to the New London Development Corporation could result in higher tax collections, from which the public would benefit, ergo it was legit. (In fact, the development was a bust, and the site where Kelo’s house once stood became a vacant lot. ‘Twas a famous victory.)

Virginians added a plank to their Bill of Rights specifically to rebut the Kelo decision. “A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services,” it says. “In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.”

Virginia law treats pipeline companies as public service corporations, and the Atlantic Coast Pipeline would provide utility services. At the same time—and here’s the rub—it would do so for private gain and private enterprise.

And the pipeline’s backers have been very clear about why they support it. As a press release from Gov. Terry McAuliffe put it: “Construction of the pipeline will create 8,800 jobs, produce $1.42 billion in economic activity in the Commonwealth and generate $14.6 million. After completion, the project will support 118 jobs per year, produce $37.8 million per year in ongoing economic activity and generate $233,000 in additional annual state tax revenue.”

Increasing jobs. Increasing tax revenue. Economic development—the very reasons Virginians rejected as justifications for the use of eminent-domain authority. The Atlantic Coast Pipeline meets one test imposed by Virginia’s property-rights amendment but fails another. It will be interesting to see how the state’s high court resolves that conflict—if it can.

This column originally appeared at the Richmond Times-Dispatch.

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