Virginia Landowners on path of Mountain Valley Pipeline file Appeal to D.C. Court of Appeals; call FERC’s agency review process “a theatre of the absurd” as they fight for their day in court

FOR IMMEDIATE RELEASE

Roanoke, VA & Washington D.C.

Law Firms & Attorneys involved Hafemann Magee & Thomas, LLC of Roanoke, VA Attorneys John R. Thomas, Jr. and Mia Yugo of Roanoke VA

Today, landowners in Virginia on the path of the Mountain Valley Pipeline (MVP) filed an Appeal in Washington, D.C. to the U.S. Court of Appeals for the District of Columbia Circuit.

The Appeal asks the Court of Appeals to reverse the decision the lower court issued in May and allow their constitutional case to be heard on the merits. The landowners’ underlying case is a facial constitutional challenge to Congress’s decision to allow private pipeline companies to exercise its power of eminent domain. The lower court dismissed the case without deciding that issue.

“Landowners just want their day in court,” said Mia Yugo, an attorney at Hafemann Magee Thomas representing landowners in Virginia. “They want their case to be heard on the merits.”

“These are folks who own land along the pipeline route who have refused to sell, and MVP is trying to take their private property using the state’s power of eminent domain,” said attorney John R. Thomas, Jr., who represents the landowners.

This portion of the Appeal involves how Landowners can challenge the constitutionality of Congress’s decision to transfer its eminent domain power to FERC and/or a private entity. The issue on appeal is whether the landowners can file their constitutional challenge in court or whether they must first ask the agency to decide the legitimacy of its own existence and power.

The Appeal states that the “real-world consequence” of forcing landowners to go to the agency first is “a theatre of the absurd: an entirely meaningless agency review process that does nothing but arbitrarily delay landowners’ ability to have their day in court while pipeline construction irreparably transforms their private property.” A recent D.C. Court of Appeals case noted that FERC has often used tolling orders to delay judicial review of pipeline challenges for months or years, while pipeline construction proceeds. In some cases, the pipeline is put in operation before landowners ever get to court.

Asking FERC to decide this issue is particularly odd here given that FERC has already admitted it cannot decide the legitimacy of its own power or fix the constitutional problems alleged.

As the Appeal notes, “To conclude that Congress implicitly intended preclusion is to conclude that Congress wanted to waste everyone’s time—the agency’s and the parties’ alike—by sending appellants through a needlessly complex, inefficient, and futile agency review process.”

Forcing landowners to go to the agency with their constitutional challenge would, as the Appeal states, “literally force the landowners to surrender their farm to the taking—to watch the bulldozers enter their property and the pipes go into the ground whilst they wait on the sidelines for a meaningless agency review process to conclude.”

“Courts are typically worried about a ‘bet the farm’ conundrum when agency review is at issue,” said Yugo. “This is a ‘surrender the farm’ conundrum. The harm here isn’t that someone has to bet the farm to have their day in court; the harm is that private property will be irreparably transformed before you ever get to court.”