Virginia Tramples Property Rights

Fundamental rights should trump government whim.

Thought experiment: What are the odds of the Virginia General Assembly passing a law that allowed private individuals to enter the headquarters of Dominion Resources over the company's objections—so long as the individuals had a good reason to, and gave the company advance notice?

The question answers itself. Yet 11 years ago, the state passed a law allowing natural-gas companies to trespass on private property "to make examinations, tests, land auger borings, appraisals and surveys without the written consent of the owner." Dominion is now using that law against scores of landowners in Nelson and Augusta counties who have rejected the company's request for access to their property because they object to the Atlantic Coast Pipeline the company plans to build.

The pipeline—a $5 billion, 554-mile project—will transport natural gas from West Virginia to North Carolina. Given the project's benefits to the economy and to the environment (natural gas produces half the greenhouse gas emissions coal does), it makes good sense. Both Democratic Gov. Terry McAuliffe and his nemesis, Republican House Speaker Bill Howell, have endorsed it. The Obama administration's effort to reduce the country's reliance on coal makes it almost obligatory.

Opposition to the pipeline has flourished in Nelson, and to a lesser degree in other affected localities. Arguments about policy often masquerade as arguments about process, and some of the property-rights objections might disappear if Dominion were proposing to string a line of Christmas lights across the state instead of pressurized natural gas.

But that isn't to say either concern is frivolous. Pipelines can cause problems. Rick Webb, a retired environmental scientist and a leader of the pipeline opposition, has drawn attention to slope failures caused by a Dominion pipeline in West Virginia that have clouded some streams with sediment. That's a minor concern, but there are bigger ones. In 2008 the Transco pipeline owned by the Williams Co. exploded in Appomattox County, destroying two homes and injuring five people. Two years later a PG&E natural-gas pipeline exploded in San Bruno, Calif., killing eight people. Pipelines are remarkably safe—Virginia already has more than 20,000 miles of natural-gas pipeline around the state—but not perfectly so.

The property-rights question also is valid. Utilities have the power of condemnation in Virginia, and gas companies have the power to enter property without permission. That 2004 law, which now faces legal challenge, was introduced after Duke Energy failed to get federal approval to survey private land before the Federal Energy Regulatory Commission had approved the pipeline it then was proposing.

The law provoked little debate at the time, which is too bad. The power to intrude, like the power to condemn, generally is reserved to agents of the government. Dominion is a regulated public service corporation, not a government agency. If it is going to have some of the powers government has, then it also should have some of the accountability mechanisms government does.

For instance, perhaps one or more members of Dominion's board of directors, or some of its principal officers, should be elected by the voting public. Political parties could nominate candidates, as they do for other public offices, and localities could administer the polls, just as they do for other public elections.

Is this overwrought? Not really. After the Supreme Court's execrable decision in Kelo v. New London, Virginians enthusiastically endorsed a constitutional amendment reinforcing the rights of property owners. The state constitution now stipulates that the right to property is "fundamental" and that eminent domain must be exercised only for strictly public uses—not for private benefit or even "economic development."

Moreover, it stipulates that "The condemnor bears the burden of proving that the use is public, without a presumption that it is," and that a public service company can exercise the condemnation power only "when such exercise is for the authorized provision of utility … services." So far, the Atlantic Coast pipeline is only proposed—not authorized.

Of course, Dominion is not condemning property yet, either. It is only trespassing on it. And since driving onto someone's property over their objections is a lesser injury than taking it outright, perhaps it should have to meet a lower standard.

Then again: As Joe Waldo, a property-rights lawyer representing some pipeline opponents pro bono, told the Waynesboro News-Virginian recently: "Hundreds of miles of pipelines have been constructed in Virginia without that law." The law makes life easier for the utility—but is that really what state law is for?

We don't yet know whether the Atlantic Coast pipeline will receive federal approval, so we don't yet know whether it qualifies as a truly public need. Until it does, Dominion should not have the kind of power generally reserved to entities that have the consent of the governed.