Waldo & Lyle is on:

facebook 100




301 West Freemason St.
Norfolk, VA 23510
Phone: 757.622.5812
Fax: 757.622.5815
Email Us


Pipeline FAQs

Pipeline Survey Rights

Can a gas company enter onto my property without my permission to survey the route of their pipeline?

Not without strictly following the law.

What is the law the gas company must follow to survey on my property?

Virginia Code Section 56-49.01 requires the gas company to send you a letter by certified mail with a request for permission to enter onto your property and inspect the property. This request must set forth the date the inspection is proposed to be made, and must be made not less than 15 days prior to the date of the proposed inspection.

If I do not give them permission to come onto my property in response to this letter, what will the gas company do next?

If it wants to move forward with survey work on your property, the gas company is required by Virginia law to send you—again by certified mail—a notice of intent to enter your property. This notice must set forth the date of the intended entry onto your property for survey work, and must be made not less than 15 days prior to the date on which the gas company intends to enter your property.

If I still refuse to allow the gas company on my property after they have sent a notice of intent to enter, are they permitted to enter the property?

The gas company is permitted by Virginia law to enter onto your property to make examinations, tests, hand auger borings, appraisals and surveys for its proposed line if they send you the request for permission by certified mail with a date of the proposed inspection at least 15 days prior to that date and they send you the notice of intent to enter by certified mail with the date of the proposed entry at least 15 days prior to that date.

What if the gas company does not provide the date of entry?

If the gas company does not provide the date of entry, or does not provide at least 15 days notice by certified mail, it is not complying with the law and any entry onto your property constitutes a trespass.

Without my permission, may the gas company bring trucks onto my property for surveying?

No. Unless you give the gas company permission to do so, it may not use motor vehicles, self-propelled machinery or power equipment during its inspection and survey work on your property. Gas company employees may only enter onto the property on foot and may not use any vehicles power equipment during their time on your property. The survey crew may use a hand bore to take soil samples from your property.

If a gas company employee causes damage to my property while inspecting or surveying it, am I entitled to compensation?

Yes. The law requires that the gas company make reimbursement to the owner for any actual damages resulting from such entry. So, for example, if the survey crew damages a road on your property, or leaves behind a hole that causes an injury to a person or animal, or damages a vehicle or equipment, the gas company must pay you for those damages. If they do not, you can enforce your right to recover those damages in court.

If I choose to allow gas company surveyors to enter onto my property, is there anything I should do to protect my rights?

Yes, if you give permission to the gas company, you should only do so in writing, keeping a copy of any such writing for your own records. If you give permission, you should do so only for specific dates, and you should request the names and employers of all persons who will be on your property as well as the specific times when those persons will be on your property. You should also request that the gas company tell you the nature of the activities that its employees or contractors will be performing on your property, provide you with a list of equipment to be used on your property, and give you a copy of any report or document created as a result of the time spent and work performed on your property.

What is the statute that applies to the gas company survey rights?

§ 56-49.01. Natural gas companies; right of entry upon property.

  1. Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a, as amended, may make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities, and for such purposes, by its duly authorized officers, agents, or employees, may enter upon any property without the written permission of its owner if (a) the natural gas company has requested the owner's permission to inspect the property as provided in subsection B, (b) the owner's written permission is not received prior to the date entry is proposed, and (c) the natural gas company has given the owner notice of intent to enter as provided in subsection C. A natural gas company may use motor vehicles, self-propelled machinery, and power equipment on property only after receiving the permission of the landowner or his agent.
  2. A request for permission to inspect shall (i) be sent to the owner by certified mail, (ii) set forth the date such inspection is proposed to be made, and (iii) be made not less than 15 days prior to the date of the proposed inspection.
  3. Notice of intent to enter shall (i) be sent to the owner by certified mail, (ii) set forth the date of the intended entry, and (iii) be made not less than 15 days prior to the date of mailing of the notice of intent to enter.
  4. Any entry authorized by this section shall not be deemed a trespass. The natural gas company shall make reimbursement for any actual damages resulting from such entry. Nothing in this section shall impair or limit any right of a natural gas company obtained by (i) the power of eminent domain, (ii) any easement granted by the landowner or his predecessor in title, or (iii) any right-of-way agreement, lease or other agreement by and between a natural gas company and a landowner or their predecessors in title or interest.

Interstate Natural Gas Pipeline Condemnation

How are interstate gas pipelines regulated in federal law?

Natural gas pipelines fall under the jurisdiction of two federal statutes: The Natural Gas Act (NGA) and the Natural Gas and Hazardous Materials Pipeline Safety Act, (the NGPSA). The NGA regulates the interstate transportation and sale of natural gas and the NGPSA regulates their safety.

How do pipeline companies win approval?

The NGA requires a natural gas company to obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission (FERC) to transport, sell, construct, extend, acquire or operate a natural gas facility. FERC imposes two conditions for it consent: 1) the natural gas company is financially capable, legally compliant and institutionally responsible and 2) the pipeline is necessary.

What does the NGA say about the power of eminent domain?

The NGA specifically provides that a natural gas company has the power of eminent domain when it cannot acquire land by voluntary sale. This is most often exercised in the federal courts, not state.

Do state laws apply?

The NGA declares that natural gas pipelines serve a national public interest in interstate commerce, an activity regulated by Congress solely, thus pre-empting state law and state regulations. FERC controls interstate pipeline approval, facilities and rates. The safety standards in the NGPSA also pre-empty state laws and regulations except where Congress has made explicit exceptions.The NGPSA gives to the Department of Transportation (Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety) the power to regulate interstate pipeline safety.In a 1988 test case from Michigan, the doctrine of pre-emption was upheld by the U.S. Supreme Court. Since then, courts of appeals have consistently enforced the pre-emption against state challenges over permitting, financing and rates by state governments and by local governments applying zoning and building laws. So sweeping is the power of the NGA that it preempts conflicting state constitutional protections, including those passed in Virginia in 2012.

What protections do landowners have in federal courts?

Rulings by federal courts of appeal and district courts in natural gas condemnations have combined over time to create a body of law that give private property owners few of the protections and rights they could expect in Virginia courts. Among the unsettled issues are the right to a jury to determine just compensation and the right to compensation for damages apart from the loss of property.

Do I have a right to a jury in federal court?

There is no right in the U.S. Constitution to a jury trial in eminent domain suits. A property owner must ask for a jury trial within 20 days of being served with a condemnation suit. Many property owners are unaware of this at the time they are served. Even if they make the deadline, a judge must make a final decision after considering whether a jury trial will impede the timetable for pipeline construction. In federal eminent domain cases, jury trials are rare; judges opt to decide compensation issues themselves or hand it off to a three-person commission of experts.

What other procedures are different in federal court?

Similarly, the rules governing litigation create the strong legal presumption that favors the interest of the gas pipeline company over the interests of the property owners. For example, in some courts (but not all) the gas company has not been required to show it negotiated in good faith in trying to arrive at just compensation with property owners before condemning their land. These courts have held that the gas company must show only that it was unable to get the landowner to agree to a price.
In addition, there is no burden on gas companies to determine the fair market value of property; that burden falls on the landowner.

In other words, in a condemnation case the law gives nearly every benefit of the doubt to the gas companies to the detriment of property owners.

Can the gas company take possession of property before paying for it?

Generally, yes. The NGA does not explicitly give gas companies "quick take" powers to take possession of private property before a just compensation trial. But trial courts mostly have held that once the gas company shows it has the right to condemn for the pipeline, it has an inherent right to take possession of property before trial with a preliminary injunction. Some courts have refused, arguing that only Congress can give this power. We intend to contest this point again in Virginia. Presently there is a split in the federal appeal circuits and the issue is ripe for a challenge all the way to the United States Supreme Court. We are ready, willing and able to take this issue to the United States Supreme Court to protect our clients’ rights.

Doesn't the Fifth Amendment to the U.S. Constitution require payment of just compensation?

Both the U.S. Constitution and the Virginia Constitution require just compensation for land taken by eminent domain. But the Virginia constitution defines just compensation more favorably. In most instances, the federal courts require payment for the fair market value of land. In cases of the condemnation of only a portion of a parcel, the federal courts allow for compensation for the diminished value of what is left of the parcel.

The Virginia constitution has a broader definition of just compensation than just land. Under certain circumstances, it allows for indirect costs, defined as "damages" arising from the loss of land, and payment to businesses for lost profits and lost access.

The U.S. Supreme Court has held that just compensation does not cover future lost profits, the expense of moving removable fixtures and personal property, relocation expenses or loss of good will. Property owners in Virginia are eligible to receive these types of compensation, except under the natural gas act.

Does the 2012 Virginia Property Rights Amendment to the Virginia Constitution protect me against a Natural Gas Pipeline Company taking my property?

No. The Natural Gas Act is the federal law that governs interstate pipelines and it inoculates the gas companies that build them. They are beyond the reach of 2007 reforms enacted by the General Assembly, many of which were beefed up by the 2012 Virginia Property Rights Amendment, which 75% of Virginians supported. The gas companies do not have to play by these more restrictive rules.

What do all of these answers mean?

First, if they are permitted by FERC, the two pipelines will likely require the greatest exercise of eminent domain in Virginia in modern times. The Atlantic Coast Pipeline stretches for 550 miles from West Virginia through central Virginia into Hampton Roads and south into North Carolina. The Mountain Valley's 350-mile line runs through five counties in southwest and south side Virginia from Giles to Pittsylvania County.

Second and more troubling, it means that federal pipeline laws nullify these new safeguards, protections and guarantees of fair play.

Billions will be spent on these pipelines.

Lives will be upended.

Scenic lands and beautiful rivers will be breached.

All of this will be done with public powers delegated to giant utility companies that are used to getting their way.

It is essential that property owners develop a full understanding of the public powers that have been put at the disposal of the gas pipeline companies.