Finding out that your property lies in the path of a proposed pipeline can come as a shock. Even more shocking is learning—oftentimes from a stranger knocking at your door—about the pipeline company’s ability to take your property if you refuse to sell.
Jill Averitt remembers the day in 2016 when representatives of the Atlantic Coast Pipeline (ACP) came to the homestead she and her family share with close relatives in central Virginia. “It’s just so scary being approached by these land agents who say they are the pipeline company, who talk like lawyers, and who act like God,” she says. “Once you get hit with one of them, they just steamroll you. It’s hard to know who to trust.”
Despite feeling intimidated, the Averitts wouldn’t sell their 135-acre property, along with a 100-acre commercial site the family had hoped to develop. The company, Dominion Energy, ended up claiming the land anyway via eminent domain, the power to take private land for “public use,” which in recent years has been invoked with increasing frequency by oil and gas companies seeking to build new pipelines. After Dominion and its ACP partner, Duke Energy, canceled the Atlantic Coast Pipeline in July 2020, the Averitts, who had been in the process of challenging the company in court, regained control of their land, but not without a serious financial and emotional toll. Others along the ACP’s route—often rural communities that are disproportionately BIPOC, low-income, or both—have fared even worse in the aftermath of the canceled pipeline, which was going to run from West Virginia to North Carolina, and elsewhere in the country.
A pipeline’s demise is often only the beginning for many landowners. It can take years to fix the damage—if it can be fixed at all. By the time a company has abandoned a project, it may have already dug up the land, cleared huge swaths of forest, or laid pipe. And that’s just the environmental toll. Landowners can get stuck with permanent easements on their properties, spending their life savings on court battles, or reluctantly selling what is in many cases their only valuable asset. A pipeline may never come online, but it can still upend lives and shatter dreams.
Fight or flight
After the Federal Energy Regulatory Commission (FERC) approves a pipeline project, landowners in its proposed path are left with two options: sell the property, or hold out until the company condemns their land.
NRDC attorney Gillian Giannetti estimates that at least 98 percent decide to sell, but not necessarily because they are OK with the pipeline coming through. “That statistic doesn’t capture unwilling or maligned sellers—people who don’t want to sell, but look at the writing on the wall and do not have the financial means or elsewise to fight it,” she says. Many are strong-armed into selling by the smooth-talking land agents who, during negotiations, flash their eminent domain card. Karmen Johnson-Tutwiler describes how agents for the now-defunct Byhalia oil pipeline, which was set to run through a predominately Black and low-income part of Memphis, went so far as to trick her into signing over part of her property while she was on her way to the hospital for a medical problem. Other landowners are often swayed by the pipeline company offering more money for their property than a court might determine is fair market value in the condemnation process.
But selling your property is a permanent decision. Just ask Bill and Lynn Limpert. Believing that the Atlantic Coast Pipeline’s construction was inevitable, the couple sold their dream retirement property in rural western Virginia. Roughly three months later, the project was killed. “The decision to sell, our guilt in caving into the ACP, our gut-wrenching four-year fight, the loss of our retirement dream, and the memories of our beautiful home and property will haunt us for the rest of our lives,” the Limperts wrote earlier this year.
For landowners like the Averitts who refuse a pipeline company’s offers, they risk losing their property as soon as FERC grants the certificate to the pipeline. With this federal approval, a company immediately has the right to begin the process of seizing properties in the pipeline’s path via eminent domain—and securing permanent easements on them—even before securing the necessary state permits.
Catherine Holleran, a Pennsylvania landowner, can attest to that. Before it was canceled in 2017, the Constitution Pipeline was proposed to run 124 miles from Pennsylvania to New York. Her family resisted, but Williams, the company behind the pipeline, condemned the Hollerans’ land in Susquehanna County and, with FERC’s approval, clearcut more than 500 trees that had been crucial to the family’s maple syrup business. Williams did this all prior to getting the green light in New York State. In fact, those permits never came—an appeals court upheld New York’s decision to deny the Constitution's water permits, canceling the entire project.
“We kept saying if this doesn’t go through and you’ve already cut our trees, the damage is done, you can’t fix it. And that’s ultimately what happened,” says Holleran. The 200 trees the family has planted since are a couple of years old now, but it will be another 40 years or so before they will be mature enough to tap for syrup. Holleran, who is in her mid-sixties, likely won’t see her land and business fully recovered within her lifetime, but she hopes her story can help prevent such irreparable damage from happening to others. “Now we’re just working toward restoring and moving on.”
Sometimes, the threat of eminent domain can re-emerge with an entirely new project. In Nebraska, TransCanada (now TC Energy), the company behind the Keystone XL pipeline, condemned Jeanne Crumly’s land for the project. The pipeline was killed, releasing the land back to the Crumlys. Almost before she could breathe a sigh of relief, an agent from Summit Carbon Solutions showed up at her door. Summit is one of two companies in Nebraska trying to build risky, unregulated pipelines that would transport carbon dioxide to underground storage in an attempt to fight climate change.
“It’s exceedingly disheartening,” Crumly says, who is worried that another big company will now claim her family’s land. “These corporations have all the money and all the time in the world, and they just keep plugging away.” Crumly and other Nebraskans are exhausted after the years of fighting KXL and not eager to engage in another battle. But they’re prepared and ready to fight once again, she says, “for principle, for an inheritance, for the best interest of the land.”
After a cancellation, many landowners must live with permanent easements that the pipeline company placed on their property. Even though the owners continue to pay property taxes, it’s the company’s easements that dictate whether the owners can sell, build, drive, or even plant trees on their land.
Back along the ACP route, Joyce Burton, of Friends of Nelson in Virginia, advocates relentlessly for landowners, and acts as a liaison with attorneys like Megan Gibson, deputy chief counsel at the Niskanen Center in Washington, D.C. These days, they are working together to get the pipeline’s easements—“zombie easements,” as they call them—released.
Unfortunately, options for fighting to get land returned are limited, and can vary from easement agreement to easement agreement. “Landowners, as always, are at a disadvantage,” says Burton. “They are nervous, they are biting their fingernails, they are desperate. Because Dominion holds all the cards.”
Gibson adds that a lot of landowners are frustrated by the ambiguity, especially now that the project has been canceled for nearly two years. “The central question in everyone’s mind is ‘Why do you still need my property? What are you going to use it for?’”
FERC can help
So how did these gas pipeline projects come about in the first place? FERC reviews and approves pipeline proposals, but since 1999, FERC has approved more than 99 percent of the applications it has received. And it often gives the green light without much consideration of the impacts a project could potentially have on the environmental or local community—or even of the need for a project, as required by the 1938 Natural Gas Act.
“At the end of the day, the test for whether or not you can take somebody’s land is always going to be ‘does it serve a public purpose?’” says Jennifer Danis, a senior fellow at Columbia University’s Sabin Center for Climate Change Law. “We’ve always argued that it’s not serving a public purpose to destroy the environment for something nobody needs. And, as it turns out, the public didn’t really need the Atlantic Coast Pipeline.”
Gibson says she would love to see FERC use the wide-ranging authority the Natural Gas Act gives the agency to actually help landowners. Instead, she says, it has simply been taking pipeline companies at their word and even parroting their language in its approvals.
“[FERC officials] have failed impacted communities and landowners because of their faulty decision-making. They need to right those wrongs and flex their statutory authority that they’re more than willing to flex in favor of pipelines all the time.”
NRDC’s Giannetti agrees that FERC needs to stop approving these dirty, unnecessary projects in the first place. “The postmortem phase of a pipeline is a complicated one, and it does not make people whole,” Giannetti says. “That’s why the front-end review has to be right because we can’t fix everything after the fact. It’s very difficult to unring the bell.”
Strength in numbers
One positive outcome from these pipeline fights is the unity formed between landowners, advocates, and neighbors, but Rebekah Sale at the Property Rights and Pipeline Center (PRPC) saw the need to think bigger. “Everybody’s fighting these projects in their own backyards, but nobody was looking at it nationally.” So in 2018, the PRPC convened a conference in Pittsburgh for landowners across the country—free to attend with travel reimbursements—to share their experiences and resources. She says that FERC’s poor decision-making has caused many to lose faith in government, and the center’s ultimate mission is to help stop the use of eminent domain for oil and gas pipelines.
In the Midwest, Bold Alliance, a network created during the KXL fight, continues a similar mission of connecting landowners, including through the Nebraska Easement Action Team, a nonprofit education and legal defense fund. And as Bold Alliance ramps up efforts to resist the construction of carbon pipelines in the region, the eminent domain lawyers from the KXL days have agreed to represent landowners once again.
Finally, attorneys like Gibson from the Niskanen Center are pressuring and challenging FERC to act in the public’s interest. She calls on Congress to amend the nearly 100-year-old Natural Gas Act to reign in the overabundance of fracked gas projects. “It’s a completely new ball game today,” she says.
Until Congress acts, or until we see a major FERC overhaul, the burden in every step of the process—from proposal to cancellation—will fall to landowners. Gibson says, “Landowners are left holding the ball and, as of right now, there’s no real recourse for them.”
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