Fourth Circuit Chief Justice Questions Validity of Eminent Domain

A map of the proposed Mountain Valley Pipeline which has faced numerous judicial hurdles as landowners push back against federally-authorized eminent domain claims. Image via Mountain Valley Pipeline LLC.

RICHMOND (CN) – The chief justice of the Fourth Circuit on Tuesday questioned the validity of eminent domain laws, describing them as a holdover from the days when Americans were royal subjects.

In a case involving the planned Mountain Valley Pipeline, one of two controversial projects that are currently the subject of appeals before the circuit, Chief U.S. Circuit Judge Roger Gregory questioned the long-standing precedents that allow the government to seize land.

The case before the court on Tuesday was brought by landowners in Virginia and West Virginia who are challenging the “quick-take” authority granted the pipeline developer by federal regulators and a lower court which said the project could go forward despite the fact property owners have not been compensated.

As Tuesday’s hearing got underway, Gregory began by question a ruling the circuit handed down 14 years ago in the case  East Tennessee Natural Gas Co. v. Sage.

Sage established the standing for natural gas companies to take land prior to paying compensation, due to federal authority rendered by a Federal Energy Regulatory Commission permit, similar to the one granted for the Mountain Valley Pipeline.

“This is something extraordinary the courts have granted and the question is should it happen now before it’s done,” Gregory said. “You want to abort the [normal and lengthy eminent domain] process and take it now.”

“Maybe Sage is wrong.” he said.

Wade Massie, the Stuart and Eskridge attorney who is representing the developers, appeared stunned by the judge’s comments and referred back to the rights granted his clients by the permit, including the right to take the land prior to payment.

“We have the right to it now,” he said, stressing he believed the company had followed the letter of the law to date. “It was done with notice, these landowners had discovery and evidence hearings.”

Part of the urgency of the land claims comes from the nature of the FERC permit: it only lasts three years. And while parts of it have stalled in the courts, Sage allows the taking of land prior to all legal disputes being resolved.

To do otherwise would expose the developers to economic harm, but the status quo harms property owners who may wish to challenge a taking, lawyers for the land owners said.

Gregory appeared to agree.

“Condemnation is one of those monarchy things, we decided to keep it. ‘I want your land and I’ll take it from you,’” he said.

Chris Johns, one of two attorneys representing landowners, also questioned the wisdom of Sage, maintaining the quick-take power granted the pipeline developers was an abuse of that power.

“Only Congress can take land … the judiciary has created another way to take land, and its only for pipelines,” Johns said. “Sage says timing doesn’t matter, but as a property law professor, that hurts my heart.”

Tuesday’s hearing was the first off five pipeline-related hearings scheduled to come before the Fourth Circuit this week.

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