Second federal suit filed over Mountain Valley Pipeline

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The Mountain Valley Pipeline would run from Wetzel County, West Virginia, to Pittsylvania County, Virginia.

A collection of West Virginia and Virginia citizens on Thursday began a legal fight to try to head off the expected approval by the Federal Energy Regulatory Commission of the Mountain Valley Pipeline, launching the second federal court lawsuit in as many months over the controversial, 300-mile project.

The new lawsuit, filed in U.S. District Court in Roanoke, Virginia, seeks to block FERC from issuing a certificate approving the MVP project and giving its developers the ability to use eminent domain to condemn property for construction of the natural gas pipeline that would run from Wetzel County, West Virginia, to Pittsylvania County, Virginia.

Essentially, the case argues that such an approval by FERC would violate the Fifth Amendment of the U.S. Constitution, which requires that private property may only be taken “for public use” and that “just compensation” must be paid. It argues that, when reviewing pipeline proposals, FERC does not evaluate them under a constitutional standard, but instead applies its own economic balancing test to determine if potential public benefits outweigh possible damages.

“FERC has replaced our Founders’ guidance in the Fifth Amendment Takings Clause with its own economic sliding scale/balancing test that, at best, weighs perceived public benefits against adverse effects when determining whether to grant a private corporation the uniquely governmental power of eminent domain,” says the legal complaint, filed on behalf of 10 families, including West Virginians in Summers County and one in Monroe County.

Named as defendants in the case are FERC, acting commissioner Chairwoman Cheryl A. LaFleur and Mountain Valley Pipeline LLC.

FERC declined to comment on the lawsuit and Mountain Valley Pipeline LLC spokeswoman Natalie Cox would say only that the company was aware of the complaint and would review it.

A legal challenge to the MVP project already is pending before the 4th U.S. Circuit Court of Appeals in Richmond. That case, brought by the Sierra Club and other citizen groups, challenges the approval by the West Virginia Department of Environmental Protection of a water quality certification for the pipeline. DEP Secretary Austin Caperton refused to hold an appeal hearing on his agency’s approval of that certification, but did not explain his reasons for the action.

Last month, FERC staff issued their final environmental report on the MVP project, but the commission itself — down to one member while the Senate considers two nominees from President Donald Trump — has not yet granted the pipeline its needed certificate.

Among other things, the new lawsuit alleges that when faced with administrative challenges to its actions, FERC “inevitably tolls” those challenges, a move that “[permits] construction to proceed at a blistering pace, thus rendering any challenges moot.”

“FERC’s actions embody the spirit of seeking forgiveness rather than permission, while landowners and other interested citizens are demoted to subservient permission seekers, bearing no resemblance to the principle of the ‘consent of the governed’ upon which this nation’s laws were derived.”

Shortly after filing their initial complaint on Thursday, lawyers for the citizens asked U.S. District Judge Elizabeth K. Dillon to grant them a preliminary injunction to block FERC from issuing that certificate.

“There is no public interest impacted, hindered, or otherwise affected by preserving the status quo pending determination of the parties’ respective rights and in precluding FERC and MVP from engaging in the unconstitutional exercise of eminent domain,” the request for an injunction stated.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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