Mountain Valley Pipeline v. Brian C. and Doris W. McCurdy ( 2016 )

FILED
No. 15-0919 – Mountain Valley Pipeline v. McCurdy November 15, 2016
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Chief Justice Ketchum, dissenting: OF WEST VIRGINIA
I personally do not believe private, for-profit, corporations should have the
power to take a person’s land by eminent domain. However, the laws enacted by our
Legislature clearly allow such a taking.
This case presents a different wrinkle in the law of eminent domain: A
private, for-profit, corporation seeks to take the landowner’s property through the power
of eminent domain to build a natural gas transportation pipeline. Before taking the
property, the corporation seeks entry onto the land to survey the proposed route of the
pipeline.
Our Legislature has expressly authorized private corporations to exercise
the power of eminent domain if the land is taken for a “public use.”1 The Legislature has
provided that a “public use” for which private property may be taken includes pipelines
for transporting natural gas.2 The Legislature has further provided that a private
corporation taking property for a “public use” may enter upon lands to examine and
survey the land before it takes the land.3 Therefore, a private corporation may enter upon
land that will be appropriated for a “public use” to examine and survey the land. It is
1
W.Va. Code, 54-1-1.
2
W.Va. Code, 54-1-2(a)(3).
3
W.Va. Code, 54-1-3.
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clear that the private corporation must be able to establish a “public use” before it can
enter to examine and survey the land.
The issue in this case is simply whether the proposed right-of-way for a gas
transportation pipeline across private property is for a “public use.” If the taking is for a
“public use” then the private corporation has the legal right to enter the property to
inspect and survey the land before filing a condemnation action.
The private corporation in this case is building a north-south pipeline to get
Marcellus and Utica gas in North Central West Virginia to market. The gas pipeline will
run through West Virginia to a point outside of West Virginia. Once outside the State,
the gas will be pooled with other gas and sold for a profit to gas companies who will
distribute it in interstate commerce for public use. It is unknown if any gas companies in
West Virginia will buy any of the pooled gas for residential or industrial use in West
Virginia.
It is undisputed that 95% of the natural gas that will flow through the
pipeline will come from West Virginia land. There is no question that the bulk of this gas
is coming from under the land of many, many West Virginians in North Central West
Virginia who will benefit and be paid royalties for the gas under their land. The gas
pipeline will transport two billion cubic feet of West Virginia natural gas a day to market.
Not only will many, many landowners benefit, the gas pipeline will also benefit West
Virginia’s gas well drillers and workers in the gas fields. Additionally, it will allow the
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State to collect large amounts of severance tax on natural gas that is extracted from West
Virginia land.
It is also undisputed that the existing natural gas transportation pipelines in
West Virginia are at capacity and cannot carry this gas. In other words, this West
Virginia natural gas will have to be trucked to market.4 The evidence at the hearing
demonstrated that without the pipeline to transport the gas from the drilling areas to
market, the drilling will likely not be economical and will not occur.
The majority opinion and the circuit judge narrowly define the term “public
use,” even though our Court has continually expanded the definition. They decline to
follow the modern approach adopted in the well-reasoned cases of the majority of
jurisdictions in the United States and the U.S. Supreme Court.
The circuit judge in defining “public use” used the “fixed and definite”
definition adopted in 1883 by Varner v. Martin.5 This definition was last used by our
Court in the 1913 case of Carnegie Natural Gas v. Swiger.6 In Swiger, our Court held
that “pipeline companies organized for transporting gas must serve the people with gas,
under reasonable and proper regulations, along the entire line traveled.”7 Of course, there
were no interstate transportation pipelines carrying natural gas to urban centers in 1913.
4
There is also another natural gas pipeline in West Virginia that is proposed. The application to
build this pipeline is before the Federal Energy Regulatory Commission.
5
Varner v. Martin, 21 W.Va. 534, 535 (1883).
6
Carnegie Natural Gas Co. v. Swiger, 72 W.Va. 557, 79 S.E. 3, 9 (1913).
7
Id.
3
In a 1998 case, Charleston Urban Renewal Auth. v. Courtland Co., our
Court decided to no longer follow the narrow “fixed and definite” use test.8 The Court
referenced the narrow test used in Swiger and stated “[t]here was a time when this
Court’s cases took a more narrow view of what could constitute a ‘public use’” and
recognized that “what may constitute a ‘public use’ has been broadened over time.”9
It is a judicial question, after giving due respect to a legislative declaration,
whether the purpose of the taking is connected to a valid “public use.”10 The vast
majority of state courts and the U.S. Supreme Court have endorsed a more expansive
definition of “public use.” They define “public use” as a “public purpose” or “public
advantage.” “Any exercise of eminent domain which tends to enlarge resources, increase
industrial energies, or promotes the productive power of any considerable number of
inhabitants of a state or community manifestly contributes to the general welfare and
prosperity of the whole community and thus constitutes a valid public use.”11 “Public
use” is considered “public benefit” and it is not considered essential that the entire
community or even a considerable portion of the community should directly participate in
any improvement in order that it constitutes a “public use.”12 Our Court should adopt this
enlightened definition of “public use.”
8
Charleston Urban Renewal Auth. v. Courtland Co., 203 W.Va. 528, 509 S.E.2d 569 (1998).
9
Id., 203 W.Va. at 536, 509 S.E.2d at 577.
10
State v. Stahl, 141 W.Va. 233, 89 S.E.2d 693 (1955); Nichols on Eminent Domain 3d §7.03
[11] [6].
11
Kelo v. City of New London, 545 U.S. 469 (2005) and the cases cited in Nichols on Eminent
Domain 3d § 702 [1] [3].
12
Id.
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There is no doubt that the natural gas transportation pipeline will enlarge
West Virginia resources, increase industrial energies, and promote productive power in
West Virginia. Moreover, it will increase prosperity in West Virginia through the
increased amount of severance tax collected on natural gas extracted from West Virginia
land.
Although the parties did not brief, and the majority did not discuss, the
modern “public purpose” or “public advantages” definitions of “public use,” I would
adopt this more enlightened view. Under the modern definition of “public use” the
pipeline company should prevail.
I dissent.
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