Six Southwest Virginia landowners are once again asking the U.S. Supreme Court to hear their case related to the Mountain Valley Pipeline.
Since 2020, the six have argued that Congress violated the constitutional separation of powers when it delegated the legislative power of eminent domain to the executive branch by way of the Federal Energy Regulatory Commission, which regulates interstate pipeline construction. In 2017, FERC authorized developers to take property from the six landowners for the 303-mile natural gas project.
The case already has come before the Supreme Court once, and in April the nine justices unanimously vacated an earlier dismissal by the U.S. Court of Appeals for the D.C. Circuit and sent it back to that court.
That was a victory for the landowners, albeit a temporary one: The D.C.-based appeals court dismissed the lawsuit again last month, reaffirming its previous decision that a lower district court couldn’t hear the suit because it had taken up another related case in 2018 — in other words, the landowners’ suit “came too late,” the appellate court’s three-judge panel wrote.
Mia Yugo, an attorney with Roanoke-based Yugo Collins representing the landowners, said in a statement that the Supreme Court “has been very clear” that challenges to a federal agency’s power — such as the landowners’ challenge to FERC’s power to grant eminent domain authority to the pipeline developers — must be filed in district court.
“The D.C. Circuit’s decision to reinstate a vacated opinion is perplexing and defies controlling Supreme Court precedent,” Yugo said Tuesday when the latest appeal was filed.
A Mountain Valley Pipeline spokesperson declined to comment Wednesday.
The six landowners are Cletus and Beverly Bohon of Montgomery County, Wendell and Mary Flora of Franklin County, and Aimee and Matt Hamm of Roanoke County.
It’s unclear whether the Supreme Court will consider their case again. Christopher Collins, another attorney with Yugo Collins, noted that the high court takes up less than 1% of the cases sent to it.
Even if the justices do agree to hear the landowners’ latest plea, the Mountain Valley Pipeline could be finished first. After being delayed for years by legal and permitting challenges and seeing its estimated cost more than doubling to upwards of $7.6 billion, the project is anticipated to be complete by the end of the second quarter, according to Equitrans Midstream, the lead partner in the pipeline joint venture.
Still, Yugo said, “Landowners should get their day in court, even if it’s four years overdue.”
In a related case, the Richmond-based 4th Circuit U.S. Court of Appeals is scheduled to hear oral arguments later this year regarding compensating the Bohons for the land seized by eminent domain.
The Mountain Valley Pipeline is planned to run from West Virginia through six Virginia counties, ending at a compressor station in Pittsylvania County.
Supporters say the pipeline will help carry natural gas from Appalachian shale deposits to mid- and south Atlantic U.S. markets, meeting a need for domestic energy. Opponents have said the project is unnecessary, unsafe and harmful to the environment.
Lawsuits focusing on the pipeline’s impact on federally protected endangered species and national forests were dismissed in August. Judges cited legislation from this past summer that approved the pipeline’s remaining outstanding permits and shielded those permits from further legal challenges.
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