The key legal point in the controversy is a Virginia 2004 law passed (see below) that few thought mattered much. It states that a pipeline firm may enter private property for survey work without permission. Whether that law is constitutional may decide the entire issue. While there has been no such legal test, one may be forthcoming. On Feb. 5, U.S. District Judge Michael Urbanski heard arguments in a lawsuit filed by several landowners. He said he will rule soon, adding that it is a “fascinating and important case.”
§ 56-49.01. Natural gas companies; right of entry upon property.
A. Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a, as amended, may make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities, and for such purposes, by its duly authorized officers, agents, or employees, may enter upon any property without the written permission of its owner if (a) the natural gas company has requested the owner's permission to inspect the property as provided in subsection B, (b) the owner's written permission is not received prior to the date entry is proposed, and (c) the natural gas company has given the owner notice of intent to enter as provided in subsection C. A natural gas company may use motor vehicles, self-propelled machinery, and power equipment on property only after receiving the permission of the landowner or his agent.
B. A request for permission to inspect shall (i) be sent to the owner by certified mail, (ii) set forth the date such inspection is proposed to be made, and (iii) be made not less than 15 days prior to the date of the proposed inspection.
C. Notice of intent to enter shall (i) be sent to the owner by certified mail, (ii) set forth the date of the intended entry, and (iii) be made not less than 15 days prior to the date of mailing of the notice of intent to enter.
D. Any entry authorized by this section shall not be deemed a trespass. The natural gas company shall make reimbursement for any actual damages resulting from such entry. Nothing in this section shall impair or limit any right of a natural gas company obtained by (i) the power of eminent domain, (ii) any easement granted by the landowner or his predecessor in title, or (iii) any right-of-way agreement, lease or other agreement by and between a natural gas company and a landowner or their predecessors in title or interest.
(2004, c. 829.)
A portion of Virginia Senator Deeds (Co-sponsor of the bill) newsletter is posted below.
The last two sentences are of interest to the right of entry states and supporters.
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Senator Creigh Deeds' Newsletter February 6, 2015
A number of bills of interest relating to energy and power companies are still pending before the legislature. The first, Senate Bill 1338, sponsored by Senator Emmett Hanger would repeal a 2004 law that gave natural gas companies the right to enter onto private property, prior to the exercise of eminent domain, to conduct a survey to determine if the property is suitable for a pipeline. Frankly, the utilities can already do this with permission. I voted against the law in 2004 and am co-sponsoring the bill because I do not think the state absent exigent circumstances has the right to give private companies or individuals the right to come onto the property of someone else without permission. It has effectively legalized trespass and is totally unconstitutional, in my view.
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Today's Washington Post had this OpEd: http://www.washingtonpost.com/opinions/a-proposed-pipeline-tests-property-rights-in-virginia/2015/02/06/f18b0226-abe1-11e4-9c91-e9d2f9fde644_story.html/a >
It's darn near impossible to survey some properties without a little trespass. Especially when I'm not even sure where the lines are yet!
