The Gardner farm in Wade, population 567, in Cumberland County has been in the family for more than 70 years. On these 960 acres, two generations of Gardners have raised grains, oats, barley, soybeans, and more recently, beef cattle.
But the Gardner family is now among several defendants in a federal case involving the Atlantic Coast Pipeline. ACP, LLC, which includes majority owners Duke Energy and Dominion Energy, filed several motions over the past week asking US District Court Judge Terence Boyle to allow them to use eminent domain to seize portions of the defendants’ property. However, what distinguishes this case is that ACP, LLC wants to take the property without paying the land owners first. This is known as a “quick take.”
Similar documents have been filed against five defendants, including owners of a strawberry farm, in Nash County.
Henry Kitchin Jr., an attorney with McGuireWoods in Wilmington who is representing ACP, LLC, did not respond to questions via email.
Doris Gardner, who recently turned 90, said the pipeline would cross a small corner of her family farm. Although a map indicates a temporary easement would encompass a little more than a tenth of an acre, that land is nonetheless the Gardners’. “Maybe we don’t want the pipeline,” she said. “Maybe we don’t need it.”
Under a typical eminent domain case, the party doing the seizing, such as a government agency that is building a highway, must pay the landowner “just compensation” for the use of the property. What qualifies as “just” is open to interpretation; land owners in these cases often say they’ve been underpaid for their property’s value. At public forums about the Atlantic Coast Pipeline, several property owners have complained that they felt lowballed by land agents in the financial negotiations.
Once landowners have been paid, then a government agency or company can access the property.
But in this recent case, the landowners have rejected ACP, LLC’s offers, which, according to court documents, each exceed $3,000. Since the negotiations have reached an impasse, ACP, LLC is asking the judge to allow the company to deposit money in a designated account to pay the property owners for the easements later. However, the Natural Gas Act of 1938, one of the main statutes governing the project, contains no quick-take provision.
“This is going to be a big fight between the gas company lawyers, the defense lawyers and environmental groups,” said property rights attorney Charles Lollar.
The land, ranging from less than a tenth of an acre to more than five acres, would be used as permanent or temporary easements for pipeline construction. Without the easements, the pipeline’s owners can’t begin construction. Yet while ACP, LLC has received federal certification to build the project, it has not received the mandatory state water quality, air quality and sedimentation permits.
Charles Szypszak, a faculty member at the UNC School of Government, specializes in eminent domain law. He said state statute does not require ACP, LLC to receive those permits before starting eminent domain proceedings.
Adding to the intrigue, several aspects of this pipeline case are unusual. First, argues Lollar, ACP, LLC “is not a public entity, but a for-profit corporation.” However, the Supreme Court has ruled that in cases where there is a “public benefit,” non-governmental agencies, such as corporations, can invoke eminent domain.
Whether the pipeline would benefit the public is one of the core arguments surrounding the project. The natural gas carried by the pipeline would be used primarily by the pipeline owners Duke and Dominion. Economic development boosters claim that the natural gas is necessary for eastern North Carolina to grow and prosper. Yet these same proponents have yet to produce hard evidence that this contention is true.
The permanent easements would be used to” build, operate, maintain, replace, repair, remove or abandon” the ACP project. The utilities could also change the location of the pipeline within the easement, as necessary.
ACP, LLC would use the temporary easements for up to five years. During that time, this land would be used as a road to haul in equipment and other materials to the job site. ACP, LLC is also “seeking the right to fell trees, clear brush or other vegetation as necessary or convenient” for the project.
Landowners can still use the property, as long as it doesn’t interfere with construction. They still have to pay property taxes on the easements.
Therese Vick, community organizer for the Blue Ridge Environmental Defense League, called the utilities’ tactics “the bullying of North Carolinians. They are trying to intimidate people with a premature action.”
ACP, LLC lawyers filed several summons yesterday, notifying the landowners that they have 21 days to respond to the complaint. If they fail to do so, by default, eminent domain will go into effect.
“There’s no urgency, but they want to begin building the pipeline,” Lollar said. “And once they start building, it will be very hard to undo.”