Property Rights

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.

NEXT: The Trouble with Fast-Track Authority

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    1. Geez. I don’t know that the gas company folks need to be gunned down where they stand, Swiss.

      1. The cops around here aren’t that shooty. Some of the holler folk hold grudges for a real long time. They’ll let things go if it’s for something fair, but just gun a guy down for nothing and you might wind up found in your cruiser with a bunch of extra holes.

        1. Holler folk?

          You wouldn’t happen to be from Wise County?

          1. Ah, question answered below

    2. Apparently those trespassers are (legally) in the right under Virginia law. Which totally sucks.

      1. Without looking at the statute, I couldn’t say for sure.

        There is a gap between “you can do X without written consent of the landowner” and “you can do X over the express objection of the landowner”. I don’t know if the statute authorizes trespass only when the landowner is silent, or actually overrides a landowner’s express wishes.

        So, there may still be a way for landowners to protect their property from trespass.

        1. Agreed. IANAL, of course, and was just relying on Hinkle’s description which I assumed to be accurate (bearing in mind that HINAL).

          However, as a VA landowner I’m very interested in this. My residential lot is unlikely to be a target for resource exploration but I don’t like the idea of people being able to snoop on my land without my permission.

          1. “Your” land. Ha!

      2. Of course a state law can not override the Fourth Amendment.

        1. No, but the law as written stands until it’s successfully challenged in court. And as we’ve often seen here, legislators will pass all kinds of unconstitutional stuff and leave the courts to clean up the mess.

          1. And the courts will tie themselves in knots to show “proper” deference to legislators. So the whole thing is just an orgy of Constitution-fucking.

  1. The property-rights question also is valid.

    It is THE issue. Safety only becomes a concern when people are not allowed to set their own threshold for what risk they want to incur on their own property.

  2. I live in Nelson.

    Thankfully I’m not in the path of the pipeline, but I know plenty of people who are and a solid 2/3rds of them would absolutely love to sell an easement. Dominion is just being fucktarded about this.

    1. I had no idea what the signs were about when I moved back to the area. Is it really that difficult to reroute the pipeline around the property of the holdouts?

      1. I think it’s the expense thing. You could also get a group of landowners who would try to extort the utility, offering the utility a deal just barely cheaper than the cost of rerouting. And that would only embolden the next group, etc.

        None of that is to be construed as support for eminent domain or trespassing, especially at the hands of a private party.

        1. Right, by difficult I meant expensive. I suppose they could try to extort them, but to do that they’d have to basically form a cartel large enough to make any further re-routing completely infeasible, and then hold it to together while the company tries to get one property owner to take a lower deal to undercut the others. I’m skeptical of how well that would work, especially if some landowners didn’t object in principle to the idea of the pipeline.

        2. Also, there may be restrictions on routing, additional surveying, environmental restrictions, etc.

          Never underestimate the power of NIMBY’s.

    2. Dominion is just being fucktarded about this.

      They’re usually pretty consistently fucktarded. Remnants of the old regulated days when they were guaranteed a profit by the state.

      1. Public utilities are the worst in terms of getting government-level power without even the facade of accountability which government has.

    3. I love Nelson County. One of these days I’m going to get tired of living in the People’s Republic of Charlottesville & Albemarle County and move out there.

      1. Just move north to Madison or Green. If you don’t mind commuting to C’ville for work (or a decent grocery store) you have better, cheaper land and less intrusion. Sperryville is amazing but that’s gotten costly and suffers from an extreme case of granola-ness.

        1. I actually work near Staunton so that would make my commute pretty bad. I don’t mind granola too much but I am really over the Albemarle Limousine Liberals / Uppity White People.

          I ran into a guy in Albemarle who was a former Chicago city planner who talked about how much he loved all of the zoning laws and regulation in Albemarle County because they really help push up property values and keep out undesirables.

  3. 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.

    Hinkle, you are usually pretty good, but this is just asinine. Eminent domain is wrong when government does it, too. Holding elections that 10% of people will even vote in to begin with will do nothing to fundamentally change that.

    The solution is to abolish eminent domain and to require everyone to obtain the permission of property owners whenever private property needs to be used or bought (not seized).

    1. No kidding. The solution to an abuse of political power is not to ramp up the politicization.

    2. The solution is to abolish eminent domain and to require everyone to obtain the permission of property owners whenever private property needs to be used or bought (not seized).

      While I agree with this in principle, I think there is another bit of government high-handedness that prevents it from being a practical solution.

      1. Honestly interested in why you feel that way? I consider myself to be pretty realistic, and I think this could fly. Not tomorrow, maybe, but as libertarian reforms go, I think this is one of the more achievable in the short to medium term.

        1. From what I remember (and I could be wrong because I’m all sorts of hazy on the details), the environmental review process basically starts over every time there’s so much as a small change in the route of a pipeline. It basically gives every owner on the route a veto over the whole enterprise.

          I recall this coming up during one of the umpteen Keystone discussions, but I have no idea where to check if it’s true. If so, it’s obvious as to why ED takings always happen with these projects.

    3. The solution is to abolish eminent domain and to require everyone to obtain the permission of property owners whenever private property needs to be used or bought (not seized).


  4. entities that have the consent of the governed.

    Offhand, I can’t think of any. Seriously, I can’t. Not for any reasonable value of “consent” or “the governed”, anyway.

  5. The law makes life easier for the utility?but is that really what state law is for?

    It appears so.

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  8. State with personal property tax disrespect property rights. Who would have thought?

  9. The USgov has always trampled everyones property rights. thanks to unreguled capitalism and greedy conservative ideology, the big guys are allowed to take what they need.

    1. Haha, what?

  10. Pipelines are a much safer way to move materials than railroads, or highways. They are also much less trouble than the state highway that bisects my property.
    If a natural gas pipeline is needed, I can’t think of any reasonable objection to having it cross my property. After all, I will be paid for right of way, and any damages done to my property. Considering the number of miles of interstate NG pipeline in this country, the risk of an accident like the one in California is negligible, particularly in a part of the nation that is not seismically active. The company should have to pay a reasonable “rent” for the privilege of surveying, and testing on the property though.

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