Updated: Nov 5, 2020
By Margaret Todd
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Natural gas companies are routinely granted authority by the government to take private lands for public use before they pay the landowner. The practice, known as “quick take” eminent domain, leaves many landowners curious about how and why private companies are given such power. In Givens v. Mountain Valley Pipeline, LLC, a Virginia farm owner is challenging a gas company’s “quick take” eminent domain powers to take and develop land for a natural gas pipeline before paying the landowner by seeking review in the Supreme Court.
What is Eminent Domain?
Eminent domain refers to the power of the government to take private property and convert it into public use. The Takings Clause of the Fifth Amendment of the U.S. Constitution gives the federal government the power to take private property. A taking must be for public use and a landowner provided with just compensation. In a standard case, the government only acquires the right to take private property after the just compensation has been given to the landowner. In those cases, private property owners are approached to negotiate a purchase price for the property the government wants. Landowners who don’t give up their land can challenge the public use and/or object to the government’s valuation of the property and amount of just compensation offered. This post relates to the land being taken for a pipeline, but this authority is not limited to energy projects and can be used for other infrastructures, such as highway projects. An overview of eminent domain proceedings and a property owner’s rights was explained in a previous post.
What is a “Quick Take”?
Unlike in a standard eminent domain case, landowners in the path of a planned pipeline who refuse to negotiate or accept an offer from a power company are often forced to give up their land by a form of “quick take” eminent domain. A “quick take” eminent domain is when the company takes immediate possession of private land and can begin development long before paying the owner. Because pipelines are underground, the physical taking of the land lasts as long as the construction lasts. After construction is completed and the pipeline is covered, the landowner may be restricted from building on the land by a pipeline right-of-way easement that is typically between 25 – 150 feet wide and covers the length of pipe crossing the property.
On Whose Authority?
The Natural Gas Act of 1938 (NGA) governs the construction and use of interstate natural gas pipelines. The NGA declares that the business of transporting and selling natural gas for ultimate distribution to the public is, by default, in the public interest. Proposed projects must be reviewed and approved by the Federal Energy Regulatory Commission (FERC). Under the law, FERC-approved projects are explicitly given the right of eminent domain to acquire “necessary right[s]-of-way” for the construction of pipelines in section 717f(h), but only when they cannot acquire the property by voluntary purchase and the amount claimed by the owner is more than $3,000.
The Quick Take Process
If the landowner refuses an offer to purchase, the company may begin eminent domain proceedings.
The first step gas companies take after filing a lawsuit is to file a request in federal court for a preliminary injunction. A preliminary injunction is a court order made in the early stages of a lawsuit with the goal of preserving the status quo before final judgment, typically to prohibit a party from destroying or changing an object of the lawsuit. In these cases, a preliminary injunction does not transfer the property title to a gas company, but it does grant the right to immediately possess the property – i.e. begin cutting trees, digging, and construction – before a final order determining the just compensation amount is made. Courts grant these requests because they interpret FERC’s approval of a project as proof that it is in the public interest and that the company is entitled to a condemnation order for any property on the path. Gas companies add urgency to their requests by arguing that any delays in the condemnation process could cost millions of dollars and cause construction delays, even before securing the state and federal permits needed to lay the pipeline.
This procedure has become the norm for pipeline construction. Previous challenges in appellate courts have only served to reinforce the practice as they uphold similar takings. If the Supreme Court decides to take up the Givens case in October it may decide whether power companies’ ability to seize private property before paying landowners will continue to be the status quo.