Yesterday, we accompanied Susquehanna County, PA landowners to the hearing on “quick take” eminent domain condemnation Constitution Pipeline is seeking against them. The pipeline company is a joint partnership led by Williams Partners LLC, also owner of the proposed Atlantic Sunrise Pipeline in Pennsylvania. Partners in the project include Cabot Oil & Gas and Washington Gas & Light.
Constitution Pipeline via their law firm Saul Ewing is asking Judge Malachy Mannion, of the 3rd Circuit Federal Court of Appeals, for “quick take” power to condemn seven properties where landowners have refused an easement agreement for the 100-foot wide pipeline right of way. The Fifth Amendment of the US Constitution requires that “just compensation” be given for any private property seized by eminent domain. If Constitution Pipeline is successful, eminent domain condemnation would occur before the amount of “just compensation” is determined by the court, as hearings on that have not yet occurred.
There was no ruling on the preliminary injunction yesterday, which means that Constitution cannot access those properties on February 16th (Monday) like they were seeking to do. Judge Mannion extended the time for written briefs and arguments to February 24th, after which he will make a ruling.
The attorney for the landowners made a very good argument that the Fifth Amendment would be violated with “quick take”.
In one case, before the 7th Circuit Court of Appeals, this was held to be true (NORTHERN BORDER PIPELINE COMPANY, Plaintiff-Appellant, v. 86.72 ACRES OF LAND, et al., No. 98-1167. – See more). Unfortunately, Judge Mannion is not bound by the 7th Circuit’s decision, only by other 3rd Circuit and US Supreme Court decisions.
The irrelevant 3rd Circuit case cited by Constitution Pipeline’s attorneys is a recent decision by Judge Marjorie Rendell (ex-governor Ed Rendell’s wife) where Columbia Pipeline sought and was granted “quick take” power for four properties they needed to replace an existing, aging pipeline (COLUMBIA GAS TRANSMISSION, LLC, Appellant v. 1.01 ACRES, MORE OR LESS IN PENN TOWNSHIP, YORK COUNTY, PENNSYLVANIA No. 13-4458 – See More).
However, the Constitution Pipeline is a new, or “greenfield”, project and the Columbia Pipeline ruling should not be considered relevant for Judge Mannion.
Other highlights of the day, Elizabeth Witmer from Saul Ewing, the bully lawyer who sent out the intimidating letters to landowners telling them they had to sign easement agreements, was there with a team of attorneys. They wheeled two hand trucks of documents in file boxes into the courtroom and spent the morning shuffling papers around in what could have easily been a Monty Python skit.
They had Matt Swift, the project manager, and Patrick McClusky, the head of land acquisition, testify about the properties. During Swift’s testimony, Constitution methodically pulled up the maps of the properties to enter them in as evidence. Swift stated that in order for Constitution to meet the in-service date of December 2, 2016, they would need to have stream crossings (both wet and dry) completed in June 2015. He stated that pre-construction surveys and tree clearing would need to commence this month in order for that to happen.
Judge Mannion questioned Swift about the ability for Constitution to apply for an extension of the in-service date and Swift admitted that FERC may grant an extension if asked. Judge Mannion seemed like he did not feel compelled by Constitution’s arguments for urgency.
Here is a story by WSKG news radio about the Holleran family, one of the landowners being threatened:
May 5, 2014
The federal government is considering an application to build a natural gas pipeline from Pennsylvania to Schoharie County in New York. Often, the pipeline companies will use the threat of eminent domain as a way to pressure landowners into signing a lease agreement. But some landowners and activist groups are calling their bluff.
Just a short hike up the hill from Catherine Holleran’s house in New Milford Pennsylvania is a small grove of maple trees.
“This blue main line is for tapping trees. We already took down a bunch of the little tubing because the season is over,” says Holleran.
Holleran has 125 maple trees on her property.
But she may lose all 125 of the trees. Holleran says energy infrastructure company Williams wants to dig out the small maple grove to make room for the proposed pipeline. The 124-mile underground line would run natural gas from fracking sites in Northeastern Pennsylvania to just west of Albany.
But, unlike many of her neighbors, Holleran is refusing to sign a right-of-way agreement with the company. She plans to force them to take it through eminent domain.
The government can use eminent domain to seize a person’s property for projects deemed to be in the public good, like forcing the sale of a home in the path of a new highway.
Holleran’s daughter, Megan, says the land agents use eminent domain as a way to pressure landowners.
“People are scared. Somebody comes and sits there in your house and says if you don’t sign this paper you won’t get any money for this land and we’ll take it anyway. It’s a flat out lie but that’s what they tell them,” says Megan. “They get scared so they get persuaded and talked into it. And then they sign something.”
A small group called Stop The Pipeline has been going door to door to convince landowners that forcing the use of eminent domain is actually a better option then signing an agreement.
According to the group’s website, landowners who sign an agreement lose their right to sue the company, they still have to pay taxes on the leased land, and are liable if anything happens on their property.
Anne Marie Garti is one of the organizers of Stop The Pipeline. Garti says if landowners welcome eminent domain, oil companies can’t intimidate them with the threat of it.
“It’s no longer a single landowner against the pipeline company. It is all of the landowners joined together with everybody else against the pipeline company,” says Garti.
According to Garti’s group, as of the end of January 70 percent of affected landowners in Delaware County and 60 percent in Schoharie County have not signed a lease.
Garti is hoping the opposition leads the federal government to deny the application.
Chris Stockton is a spokesperson for Williams. He says that, while taking resistant property owners to court is more costly; it’s not going to stop the pipeline.
“That’s something that’s built into our schedule. It’s something we plan for,” says Stockton.
Stockton says with a signed agreement the company will pay property owners three times the market value of the land, and they are likely to get less through eminent domain proceedings.
“Instead of those dollars potentially being paid to that landowner, those dollars are going to be paid to attorneys. And at the end of the day nobody wins,” says Stockton.
Back in the house, Catherine Holleran shows off a copy of the right-of-way agreement the company wants her to sign.
“I went through here and I started numbering them because it was ridiculous. I just started writing ‘No no you’re not doing that.’ Some of the stuff I just crossed it off,” says Holleran.
On each page she has used a purple highlighter to mark all the parts she disagrees with.
“So here’s where they gave us for damages, sixteen thousand for damages, for all the damages on the property. When he called me back he said, ‘we’re going to add another thirty three hundred for your maple trees.’ I thought, ‘Are you joking me?’ Thirty three hundred dollars for 50 years worth of maple trees?” says Holleran.
The pipeline company cannot start eminent domain proceedings until the federal government approves the project. The Federal Energy Regulatory Commission is set to issue an environmental impact study next month with a final decision set for September.