Sarah Hazlegrove / Courtesy
After a half-decade fight over pipeline easements, property owners look to recoup legal costs and property values.
Three generations of the Averitt family are still beaming in Nelson County three weeks after Dominion Energy announced it was giving up on the controversial Atlantic Coast Pipeline.
The natural gas pipeline would have delivered a double-whammy to Richard and Jill Averitt, who moved from Raleigh, North Carolina, to Virginia’s pristine Blue Ridge Mountains 15 years ago. In 2003, the couple had purchased 135 rolling acres south of Charlottesville intent on carving out a bucolic refuge for their siblings, parents and children.
About a decade into their new life, surveys showed the 42-inch diameter pipeline snaking just 300 feet from Richard and Jill’s front door. If that wasn’t enough, its route also bisected 100 wooded acres the pair purchased in 2013, with designs on transforming into an economy-boosting, high-end resort.
“Our homes would no longer be safe,” Richard Averitt said about the cherished, four-house hideaway where they gathered mushrooms, cured their own meat and raised chickens. “We fought the pipeline for six years with everything we had.”
The anti-pipeline cause was far from a solitary effort, he said, emphasizing the solidarity of citizens, letter-writers, tree-sitters, grassroots groups, environmental organizations, social justice advocates and others who contributed knowledge, energy and money.
“I never thought this collection of rural communities would rally in this way,” he said. “I’m so proud of what we did.”
With the pipeline threat removed, questions abound. Landowners want to scrub Atlantic Coastline easements from their property records. Others wonder if they can be reimbursed for attorney and court fees they shelled out.
So, what’s next?
Attorneys steeped in pipeline cases aren’t being coy when they answer: “It depends.”
“That might be a frustrating lawyer-type answer, but that’s where it is,” said Isak Howell, a Roanoke-based lawyer with Appalachian Mountain Advocates, with dozens of Atlantic Coast Pipeline cases in Virginia and West Virginia.
“It’s complicated,” said Howell, who counts the Averitts among his clients. “This is a totally Byzantine system.”
Howell and others are scrambling to figure out what abandonment of the project means for the hundreds of landowners along the entire route. About half of the 600-mile, West Virginia-to-North Carolina pipeline would have been buried in Virginia.
Virginia landowners — and those in the other two states — fall into one of three broad categories. The first is those who eventually signed an easement agreement with Dominion, thus allowing the pipeline corridor on their property to be condemned.
Second are families who didn’t sign an easement agreement, then lost their legal challenge after going to federal court to fight Dominion’s attempts at using eminent domain to condemn the corridor.
A third group — which includes the Averitts — is landowners whose court challenges to eminent domain weren’t yet ruled on by juries before Dominion and Duke Energy quashed the $8 billion pipeline on July 5. Those court dates were still months away.
An online records check revealed upward of 50 Atlantic Coast Pipeline cases still listed in the federal Virginia Eastern and Western District Courts this month. Howell called that figure a “fair gauge of landowners whose jury trial over a court-enforced easement had yet to occur.”
Averitt said he has no regrets about pouring more than $100,000 and hundreds of hours into numerous court challenges. Still, he thinks it would only be fair if Virginia passed a law allowing landowners in his predicament to be compensated for reasonable fees for attorneys, court challenges and other experts.
“We’re lucky — we have the resources to fight it,” said Averitt, who owns and operates a digital archiving business. “But the way all of this is done is an outrageous abuse of landowners. You have everything to lose.”
No legal authority he spoke with thought landowners would prevail against utility behemoths.
“It’s crazy that we’re expected as citizens to bear this burden,” he said about the pipeline developers’ pursuit of land condemnation via eminent domain. “Why didn’t we just have the chance to say no thanks at the beginning?”
Will pipeline easements be voided?
Landowners who willingly or not-so-willingly signed easement agreements with the pipeline builder are the ones potentially saddled with a permanent and knotty stain on property records filed at their local county courthouse. Most, if not all of them, can’t discuss the details of those pacts because they signed nondisclosure agreements.
“Landowners are in celebration mode because the pipeline was canceled,” Howell said. “But after the party, you wake up and say, ‘I wonder what I need to do next?’ That’s where a lot of folks are now.”
It’s up to the Atlantic Coast Pipeline LLC — the pipeline builder — to unwind an easement, but both parties have to be on board. And, it’s possible the builder might want the landowner to return money paid to access the corridor.
“I’ve fielded a lot of questions from clients asking what this abandonment means,” he said. “I’m making some calls, but I haven’t yet done any transactions to void an easement.”
Dominion spokesperson Ann Nallo said landowners can keep any compensation they have received.
“In the coming months, we will be evaluating the best way forward for
resolving existing easement agreements,” she said.
Roughly 2,000 landowners along the three-state route had such agreements. Nallo didn’t know how many of those were in Virginia.
While the corridor for this pipeline is 125 feet wide in most places, it’s the 50 feet closest to the buried pipeline that become part of a permanent land record, Howell said. The easement gives the builder perpetual access.
Even though the remaining 75 feet are considered temporary to accommodate stream crossings, tree removal and construction equipment, “that whole 125-foot corridor is huge and the disruption is total,” he said.
Howell said it’s possible that the Virginia General Assembly could create a legislative fix to the easement situation because the Atlantic Coast Pipeline is a such a high-profile project, “but to my knowledge that isn’t being explored.”
“These easement agreements range from something done at a kitchen table with no lawyers present to those done by the court after a trial,” Howell said. “It’s a whole patchwork, negotiated case by case.”
The permanence of an easement could be a major headache for landowners who eventually try to sell.
“It might look like a beautiful forested property, but deed research will uncover that easement giving ACP LLC the right to build and maintain a pipeline,” Howell said. “That’s a looming threat to a sale.
“In my view, those who didn’t sign an easement agreement are completely blue-sky clear,” because no record of the pipeline is in the land title, he continued. “Yes, there was a lot of heartache and a lot of pain and work, but in the end they don’t have a pipeline.”
It’s possible, he said, that a developer seeking to construct a totally different pipeline could try to knit together the existing easements to try to create a route. That builder, however, would have to apply anew for approval from the Federal Energy Regulatory Commission.
Starting over on retail dream
Scoping, siting and building a natural gas pipeline involves a tangled maze of state permits and federal laws centered on the impact construction could have on water quality, landscapes, biodiversity and cultural resources.
When Dominion and two other utilities announced initial plans for the Atlantic Coast Pipeline in 2014, the route didn’t cross any Averitt property. Still, the family opposed it on the principle that eminent domain was an unfair threat and that ratepayers shouldn’t have to fund destructive, unnecessary infrastructure moving natural gas that was destined for export.
The battle became more personal when pushback forced Dominion to reroute the pipeline. By 2016, maps showed it slicing through the family’s personal and commercial land.
After a decade of peace and quiet, Richard Averitt discovered the pipeline would cross his sister’s portion of the 135-acre homestead, just 150 feet from her front door. She had sole negotiation rights, but the rest of the family backed her up.
Like other landowners, the Averitts contributed time and money to far-reaching regulatory challenges to the pipeline that went as high as the U.S. Supreme Court. After the pipeline earned FERC certification in October 2017, the family battled Dominion’s attempts to condemn their land via eminent domain. The pipeline builders had won the right to survey the Averitts’ land that same year.
A federal court date was set for January 2021. That’s when a jury would have been tasked with deciding how much the Averitts should be paid by the pipeline company to access the corridor on their land.
“It’s the jury’s job to decide that number and settle the dispute between the Atlantic Coast Pipeline LLC and the landowner,” Howell said. “But that’s all moot now.”
Richard Averitt, 50, said he and Jill are now liberated to once again turn their attention to their dream, the Spruce Creek Resort and Market, a $35 million development in a region blooming with wineries and cideries.
They project the combination of a boutique hotel, spa, cabins, an event facility and retail establishments offering local food and drink would employ at least 100 full-time workers and generate up to $20 million in gross annual revenues.
“We’re at ground zero again,” Averitt said. “We’re grateful that we get the chance to start over, but it’s impossible to know what the opportunity cost was.”
FERC unlikely to intervene
Washington, D.C., attorney Carolyn Elefant was a trailblazer a decade ago when she began representing landowners in cases involving FERC-approved pipelines. That was when hydraulically fractured natural gas from numerous shale plays was initially promoted as a bridge fuel to transition the economy from coal to renewable energy.
She doesn’t have Atlantic Coast Pipeline clients, but helped a Pennsylvania family reverse an easement and reach a settlement for maple trees cut along the route of the recently canceled Constitution Pipeline. Williams Energy and its partners declared that 180-mile, Pennsylvania-New York natural gas project kaput in February.
“The challenge is there’s not a lot of information because there aren’t a lot of examples of pipelines being overturned or canceled,” Elefant said.
In an interview with the Energy News Network, she spoke in general terms about overarching concerns for landowners when developers back out of pipelines.
For instance, those with easement agreements need to comb through the contract’s provisions for specifics on the return of land and payments because they aren’t necessarily uniform. Also, landowners whose condemnation cases were either settled in court or set for a court date might be able to recover fees they spent on attorneys, but it isn’t a simple process.
Howell noted that he and his fellow attorneys with Appalachian Mountain Advocates haven’t billed any Atlantic Coast Pipeline clients whose condemnation lawsuits had not been settled.
With natural gas pipelines being built solely for export and arbitrage these days, it’s unfair for pipeline developers to run roughshod over families because they say what they’re doing is in the public interest, Elefant said.
“Farmers and families who want to leave their land to the next generation bear the brunt of this,” she said. “Their property is their most valuable asset. It’s the American dream to buy a property and be able to develop it for their families or create a business.”
Elefant noted that one last option for an impacted landowner might be to ask FERC to restore its property or offer compensation because the agency has the authority to do so.
This would be incredibly tricky with the Atlantic Coast Pipeline, she said, because Dominion could argue that “the certificate wasn’t issued incorrectly, we just decided to abandon the project.
“That puts Dominion in the driver’s seat. They get more sympathy if they say, ‘We were approved every step of the way, we just couldn’t make it work.’”
FERC spokesperson Tamara Young-Allen said via email that the status of right-of-way easements is not within the commission’s jurisdiction.
Natural Resources Defense Council attorney Gillian Giannetti, a self-described “FERC nerd,” said she would be shocked if the commission intervened in the court action, even though there’s nothing stopping it from doing it so.
The commission’s public use determination with the Atlantic Coastal Pipeline wasn’t overturned, she said, so its analysis isn’t directly challenged by the cancellation.
“FERC has long taken the position that the administration of the eminent domain provision of the Natural Gas Act is out of its hands and that it leaves that to the courts,” said Giannetti, part of the Sustainable FERC Project at the environmental nonprofit.
‘99% sweet and 1% bitter’
Bill and Lynn Limpert spent more than three years trying to protect the giant, irreplaceable trees on their 120-acre sanctuary in Bath County from being leveled by the Atlantic Coast Pipeline reroute.
The two are now back permanently in their Frederick County, Maryland, home after selling their beloved Virginia property and home. Although they can’t discuss the particulars because of an agreement with the buyer, other anti-pipeline activists confirmed that the couple had arranged for a sale that included a conservation easement.
“It’s 99% sweet and 1% bitter, that’s the way we feel about it now,” Bill Limpert said about their post-pipeline sentiments.
They bought their Virginia property in 2009 as a retirement refuge. It abuts West Virginia and borders national forest lands.
Dominant swaths of old-growth sugar maples and numerous types of oaks and hickories inspired the couple to choose names such as Miracle Ridge and Cathedral Hollow for spots they considered sacred. They were especially protective of Ona, a sugar maple that measures 15 feet around and is close to 300 years old.
Bill, in his early 70s, and Lynn, in her mid-60s, ended up dedicating what they thought would be quiet years to educating the public about pipeline threats to ancient trees, wildlife habitat and fragile landscapes.
It all became a bit much.
“I can’t go into any detail about the sale,” Limpert said. “I can say that it’s a really interesting story that has a happy ending .”