With just a few hours remaining until Thursday, the day that Mountain Valley Pipeline had hoped to start work on a natural gas pipeline through Southwest Virginia, a judge put a pause to those plans.
The decision by U.S. District Court Judge Elizabeth Dillon came during a proceeding in which Mountain Valley had sued nearly 300 property owners who refused to surrender their land for the controversial project.
Although the laws of eminent domain give Mountain Valley the power to obtain forced easements for its buried pipeline, Dillon ruled, she rejected the company’s request for immediate access to the parcels.
“This is a victory for the landowners along the pipeline, absolutely,” said Stephen Clarke, one of their attorneys.
“There’s no way that they [Mountain Valley] can start construction on a vast majority of the properties,” he said — at least not now.
Facing a tight deadline to have trees felled along the pipeline’s route by March 31 to meet federal wildlife protections, Mountain Valley executed what’s called a quick-take condemnation. That process might have allowed the company to start work by Thursday on the disputed properties.
But first, Mountain Valley was required to demonstrate it could pay the property owners just compensation for the easements — at prices to be determined at trials later, likely well after construction had begun. Such a demonstration would have included paying a bond or deposit with the court.
At a hearing earlier this month, Mountain Valley presented appraisals for just nine of the nearly 300 properties, which Dillon said was insufficient information on which to base an appropriate bond amount.
“Until MVP can provide a more fulsome basis on which the court can assure that just compensation will be paid, the court cannot allow immediate possession at this time to nearly all of the properties,” Dillon wrote in a 52-page decision released shortly before 6 p.m. Wednesday.
The judge gave the company seven days to report back to her with a timeline of how long it might take to conduct more appraisals and gather additional information needed to determine a bond.
Only after that happens would Mountain Valley be allowed access to the land it needs in the counties of Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania for its 303-mile pipeline. In the meantime, Dillon allowed immediate entry on the nine properties that were appraised, but only after a bond of three times their established value is posted.
“We are reviewing the court’s order and look forward to continuing to work with landowners and stakeholders on this important infrastructure project,” Mountain Valley spokeswoman Natalie Cox wrote in an email Wednesday night.
Through voluntary agreements with many landowners, the company has acquired easements on about 85 percent of the land through which the pipeline would pass. But the holdouts caused a headache for Mountain Valley.
Although tree-cutting and other preliminary work could begin on the non-disputed property, “possession of all the tracts along the route is needed for efficient construction,” Dillon wrote in summarizing earlier testimony from the company.
How soon that could happen seemed unclear Wednesday.
Clarke, a Norfolk attorney who represents some of the landowners, said conducting more appraisals and gathering additional information that the judge has asked for could be a time-consuming process.
“I’m sure there’s some wiggle room, a day or two or maybe a week,” he said of Mountain Valley’s self-imposed deadline of starting work by Thursday, a date it had held fast to during nearly three months of court proceedings.
“But at some point when you’re talking about building a 300-mile pipeline through mountainous terrain … it’s a difficult endeavor.”
If all the trees along the pipeline’s route are not felled by March 31 — when federally protected bats begin to emerge from their caves and roost in trees — Mountain Valley would have to wait until mid-November to resume work, after the bats go back into hibernation.
Such a delay would cost up to $200 million in contract cancellation fees and other expenses, along with up to $50 million in lost revenues for every month the project is delayed, Mountain Valley contends.
Dillon agreed that would pose “irreparable harm” for the company, which was one of four standards it needed to prove before getting a preliminary injunction that would provide immediate access to the land.
The judge’s decision granted the injunction on a conditional basis, meaning that Mountain Valley could conceivably start construction as soon as a bond is posted. Dillon also gave the company a victory on its argument that it was entitled to the easements despite landowner objections.
When the Federal Energy Regulatory Commission approved the project last October, it gave Mountain Valley the power to take private land for a public use, in this case a pipeline that would serve a growing national market for natural gas.
“The court recognizes that many landowners, and others, vehemently disagree that this project serves the public good,’’ Dillon wrote. “But that decision is not for this court.”
