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Va. high court affirms access to land for Atlantic Coast pipeline surveys

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Va. high court affirms access to land for Atlantic Coast pipeline surveys

The Supreme Court of Virginia said state law allowed agents of Atlantic Coast Pipeline LLC to step onto private property to survey the route for the company's 1.5-Bcf/d natural gas pipeline project, even before it received federal approval.

A majority on the court reached this conclusion in a July 5 decision written by Justice Cleo Powell that upheld the ruling of a trial court that granted Atlantic Coast permission to send people onto private property to conduct survey activities. The pipeline company, a joint venture of Dominion Energy Inc., Duke Energy Corp. and Southern Co.'s Southern Co. Gas, had brought the case to the trial court for a declaratory order that affirmed its right to enter properties after landowners turned down its requests to go on their land.

The high court said the trial court had properly applied state law, so it did not have to address the question of whether the improper application of the law could amount to an improper taking of private property. Through the law, the Virginia General Assembly has allowed gas transportation companies to enter land for a limited list of activities, including surveys, the majority said.

One justice dissented. D. Arthur Kelsey wrote that state law grants a pipeline the power to override a landowner's objection only after the Federal Energy Regulatory Commission issues a Natural Gas Act certificate that authorizes the pipeline project and gives the company the power of eminent domain. The need to survey the route before FERC issues the certificate does not give the company authority to enter private land without permission, the judge said. (Supreme Court of Virginia docket 170620)

The up-to-$6.5 billion Atlantic Coast pipeline, about 600 miles of 42-inch-diameter line, received its FERC certificate in October 2017. In January, FERC let the developers begin tree clearing and other activities that prepare for construction. Environmental groups and other opponents have resisted the authorizations. (FERC docket CP15-554)