By KEN WARD JR.
Charleston Gazette-Mail
CHARLESTON, W.Va. — The oil and gas industry’s push for legislation overturning a state Supreme Court ruling that protects property owners from unwanted surveys and other activities on their land hit at least a brief snag Thursday, when a House committee delayed action after members raised a flurry of questions about the bill.
Members of the House Energy Committee unanimously agreed to a move by Delegate David Pethtel, D-Wetzel, to push back any vote on House Bill 2688 to give lawmakers and interested parties more time to review the measure.
“I’m not trying to kill this bill,” said Pethtel, whose district is in the heart of the state’s Marcellus Shale gas-producing region. “I’d like to actually get to a bill here I could support.”
The bill at issue aims to override the Supreme Court’s ruling last November in favor of Bryan and Doris McCurdy, a Monroe County couple who sued to stop developers of the proposed Mountain Valley Pipeline from surveying their property for the project without first receiving permission to enter their land.
While saying that his company prefers to work with willing landowners, Dominion Resources lobbyist Bob Orndorff told Energy Committee members that the legislation is a priority for development of pipelines that the state’s natural gas industry has portrayed as vital to its continued growth.
“We really need this type of legislation to be able to evaluate a proposed [pipeline] route,” Orndoff said.
In its 4-1 ruling in mid-November, the state Supreme Court had said the pipeline could not use eminent domain to force the survey. Such action wasn’t allowed, the court said, because the MVP project was not serving a “public use” because it had not reached agreement on selling any gas to any consumers in West Virginia.
Writing for the majority, Justice Robin Davis said broader potential economic benefits from such pipelines were not enough to meet the current legal test that requires the general public “have a right to a certain definite use” in order to use eminent domain to take or enter private property.
Under the House legislation, and a companion bill in the Senate, any natural gas transmission company would be able to enter private property without permission of the owner in order “to make such examinations, tests, hand auger borings, appraisals, and surveys” for proposed pipeline routes or “location of its works.” The bill spells out a process for companies to follow — basically sending certified letters seeking permission from owners — and allows them access if the owner doesn’t agree.
Any entry of private land that isn’t authorized by the landowner, but which included following that process, would not be considered “a trespass nor a taking” of private property, under the bill.
Companies would be able to use “motor vehicles, self-propelled machinery, and power equipment” on the property, but that would be only after receiving permission for that activity.
The West Virginia Surface Owners Rights Organization, which represents surface landowners in natural gas regions of the state, has warned its members that this and other legislation pushed by the industry was likely to emerge this session. The group has dubbed this particular legislation the “Right to Trespass Bill.”
Similar legislation was considered last year, but did not pass. That was before the Supreme Court’s decision in the McCurdy case.
During Thursday’s committee meeting, lawmakers were unable to get completely clear answers to a variety of questions about the bill, such as what happens if the certified letter is sent to the wrong address, or who would be held responsible if a surveyor were injured during an unauthorized survey of private property, or exactly what sort of natural gas development is covered by the measure.
While one section of the bill refers to companies that operate natural gas transmission pipelines and refers to proposed pipelines, it’s not clear what the bill means when it refers to the “location of works,” and another line in the bill refers to accessing private property in preparation for seeking permits for “additional facilities.”
When asked if the bill would cover a survey or other testing that was related to a project like a new compressor station, Orndorff told the committee, “Well, it could be. It could be a compressor station.”
Orndorff said that his company, Richmond-based Dominion Resources, always tries to and prefers to work with willing landowners. Very seldom do situations like the one in the McCurdy case come up, Orndorff said.
“It’s very infrequent,” Orndorff said. “We pride ourselves on having a very good working relationship with the landowners.”
There was no mention during the committee meeting of instances where Dominion is suing landowners who refused to allow them survey access. And while supporters of the West Virginia bill are touting what they say is the success of a similar measure in Virginia, there is ongoing litigation in Virginia and also press reports of continuing conflict and confusion over implementation of the Virginia law.
Pethtel said that he was concerned that lawmakers were rushing to move the bill, which was introduced in the House just a few hours before the Energy Committee’s afternoon meeting. The Senate bill was introduced two weeks ago.
“Not only have we not had an opportunity to look at this bill, I know a lot of the stakeholders have not had an opportunity to look at this bill,” Pethtel said. “There are a lot of questions about this bill. I realize the pipeline infrastructure is very important to the industry, but I also know this is very important to the landowners.”
Committee Chairman Bill Anderson, R-Wood, said that he hopes to take up the bill sometime next week.
Anderson is the lead sponsor of the bill. Other sponsors include Delegates A. Evans, Deem, R. Romine, Fast, Lewis, Westfall, C. Lane, Higginbotham, Harshbarger and Zatezalo.
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