In May, 2014 Dominion Transmission sent letters to property owners from West Virginia to North Carolina requesting to survey private property for the proposed natural gas pipeline known then as the Southern Reliability Project. Many landowners refused, including approximately 70% of landowners in Nelson County.
In December, the Atlantic Coast Pipeline LLC, a Delaware limited liability corporation, began suing landowners who had refused to allow Dominion Transmission to survey. The first of these cases was heard today in Suffolk Circuit Court. Below is a press release from Chuck Lollar, the attorney who argued the case for a landowner in Suffolk who had refused the survey. Suffice it to say, neither Dominion nor the Atlantic Coast Pipeline (ACP) LLC are happy this evening. On the other hand, many landowners across the Commonwealth are celebrating, including Heidi Cochran, a landowner in Nelson County who called us this afternoon to alert us of this victory in court.
A Virginia court today dismissed the petition of Atlantic Coast Pipeline, LLC against a Suffolk property owner represented by Chuck Lollar of the law firm of Waldo & Lyle, which exclusively represents property owners only in eminent domain and property rights matters.The Court heard arguments from Mr. Lollar and ACP attorney John Wilburn on the constitutionality of Virginia Code § 56-49.01. Mr. Lollar argued that because property is now specifically referred to in the recent amendment to Virginia's Declaration of Rights (Article 1 Section 11 of the Constitution) as a "fundamental" right, ACP is required to show a compelling governmental interest and no lesser restrictive alternative to the requested entry; and that applying the required strict scrutiny ACP had not alleged nor could establish either. Mr. Lollar also noted that ACP was not a Virginia public service corporation and did not have the extraordinary power of eminent domain.
ACP was proceeding under § 56-49.01 in seeking a court order allowing entry to survey and take soil and other samples from private property, prior to filing its application with FERC for a certificate of public convenience and necessity. The Court did not have to rule on that constitutionality of § 56-49.01 due to the Court's conclusion that Atlantic Coast Pipeline had neither requested permission from the owner to enter nor sent the owner notice of intent to enter, both of which are prerequisites to actual entry under § 56-49.01. The Court further held that Dominion Transmission, Inc. could not assign to ACP its sending of letters requesting permission and giving notice to owners, in order for ACP to have met those requirements.
