Virginia Waldo Firm Challenges Survey Rights

The outstanding Virginia law firm of Waldo & Lyle had a number of attorneys actively objecting to the Atlantic Coast Pipeline Project.

Attorney Josh Baker raised the issue of the Virginia Constitution being “supreme law.” Realistically, this blogger would disagree with the notion that the Virginia law supersedes the Constitutional right delegated through the Interstate Commerce Clause to the Federal Energy Regulatory Commission. Yet, this raises the second issue of what rights belong to the utility, if any, until FERC approval is provided. On the flip side, it is unlikely that FERC approval would be provided unless there is certainty as to the future route of the line.

Jeremy Hopkins, another Waldo & Lyle lawyer, raises a different, but even more perplexing issue. The utility should not have an unfettered right to enter property at a time and place of its own choosing. Rather, adequate notice is a basic part of the Constitutional process. If anything, the Police Power would maintain that notice must be given in order to protect the general safety of the public.

Norfolk attorney Josh Baker told Ricketts that a 2012 amendment to the Virginia Constitution voted on by Virginia residents made private property ownership a “fundamental” right. He also argued that a state law passed in 2004 that gives natural gas companies the right to enter property does not hold up under a strict scrutiny test. The 2004 law does provide that natural gas companies can enter property without permission once they have notified the property owner in writing and specified the date of the visit. Baker argued that the law is unconstitutional

Baker said a compelling government intent must be established, and as of yet, there has been no federal permit granted for the Atlantic Coast Pipeline project, adding that the Virginia Constitution “is the supreme law.”

Jeremy Hopkins, another Norfolk attorney representing property owners, said the letter sent to the landowners speaks of a date surveyors would come, but also speaks of other potential visits to the property. He said property owners need to be aware of when someone is coming on their land. Hopkins said the notice is necessary because property owners could be operating heavy equipment and doing other tasks.