Virginia landowners urge FERC to require cancelled Atlantic Coast Pipeline to relinquish easements

Several dozen landowners who granted easements to the developers of the Atlantic Coast Pipeline are asking federal regulators to require the pipeline to give them up now that the project has been cancelled. 

“I signed an easement agreement in October 2018 because I felt I had no choice,” wrote Judy Allen in comments filed with the Federal Energy Regulatory Commission this April concerning two Bath County properties the pipeline was to traverse. “The current easement places an unwarranted burden on me and limits my ability to use the property as my sons and I desire.” 

The cancellation of the Atlantic Coast Pipeline by electric utilities Dominion Energy and Duke Energy last July opened up a thorny new set of problems. Chief among them: What should happen to land impacted, either legally or ecologically, by the now-dead project? 

How federal regulators respond to that question will have implications for thousands of acres of land. The natural gas pipeline, which would have run 604 miles from West Virginia through Virginia into North Carolina, had at the time of its cancellation secured easements for 98 percent of its route. And while the Atlantic Coast never got as far as the Mountain Valley Pipeline, at the time construction was suspended due to legal challenges in December 2018, some degree of work had been conducted on roughly 230 miles of its length. 

“In most areas, this work involved only the felling of trees,” a March FERC filing by the pipeline said. “In a smaller number of areas, additional work, including grading and installation of pipeline or aboveground facility construction, was performed.” 

In October, FERC sent a letter to Dominion’s gas transmission arm asking the developers to provide detailed plans of how it would wind down the project, “including appropriate restoration activities.” (While the gas transmission business has since been sold to Berkshire Hathaway, the Atlantic Coast Pipeline was not part of the sale and continues to be handled by Dominion and Duke.)

Atlantic Coast filed its plans this past January outlining how it proposes to deal with facilities built, pipe installed and trees felled. Under this proposal, pipeline segments already installed below ground will remain in place, while “there are no above-ground pipeline segments except for pipe strung on the right-of-way which will be cut, as needed, and removed,” the developers wrote. Felled timber will largely be processed, with the exception of 60 tracts of land where it will be left in place. 

No part of the plan, however, has aroused more ire among the public than the developers’ handling of the easements it holds. Atlantic Coast has said it intends to keep possession of the easements, although Dominion spokesperson Aaron Ruby on Monday said there are currently no plans for their use or potential buyers in the offing.

Of the dozens of comments filed with FERC on the restoration plan before an April 16 deadline for public input, the vast majority argue the developers should instead return the easements to property owners. 

“FERC granted eminent domain specifically for the ACP project,” wrote Jon Rogers of Swoope. “With the project’s cancellation, the basis for the original taking is gone. It is up to FERC, therefore, to ensure that ACP releases the easements.” 

Individual property owners aren’t the only ones pushing back against the easement decision. Groups such as the Allegheny-Blue Ridge Alliance and Southern Environmental Law Center, representing 15 organizations including the Chesapeake Bay Foundation and Sierra Club, also filed comments opposing it. 

In a February letter, the Southern Environmental Law Center characterized the easements as “a severe, continuing and now wholly unwarranted burden on properties.” 

“The typical agreement provides for a 50-foot-wide permanent easement and an additional ‘temporary’ easement that remains in force for years. Landowners cannot build, operate heavy machinery, or move earth within the easements, which can significantly impair the owners’ enjoyment of their property and diminish its value,” the attorneys for the conservation groups wrote. “Owners who wish to sell their property may find that potential purchasers are deterred by these same restrictions.”

Property values were also a concern of the Nelson County Board of Supervisors, the only Virginia elected body to file comments with FERC on the restoration plans. In Nelson, where Atlantic Coast secured more than 250 easements, officials fretted that tax revenues could ultimately be reduced if the easements remained in place.

“FERC, having authorized this process and its consequences, bears the responsibility of creating a process whereby landowners can have their previous property rights fully restored as well as ecological restoration or full reimbursement of the economic costs of physical ecological restoration,” wrote the supervisors.

Ruby, however, said that “the landowners have been fairly compensated, and more than 95 percent of them voluntarily agreed to the easements.” 

FERC has said it expects to complete an environmental review of the plans or schedule a further review by June 1.