On November 15, 2016, the WV Supreme Court entered an Order of great importance to WV landowners; now, two currently proposed legislative bills seek to circumvent the findings in Mountain Valley Pipeline, LLC v. Brian and Doris McCurdy. In reviewing the Monroe County Circuit Court’s decision, the Supreme Court affirmed the lower court’s ruling that Mountain Valley Pipeline (“MVP”)–an interstate pipeline project–had no right to enter a surface owner’s lands without permission for the purpose of surveying if gas to be piped through the project would not be used by residences or businesses in West Virginia. Now, that ruling will be moot if current proposed legislation passes this term. WV House Bill 2688 and WV Senate Bill 245 seek to change WV law to give any natural gas company the right to survey, without landowner permission, for pipelines as well as for the building of “additional facilities” no matter if the project will benefit West Virginians or not.

In the MVP case, the proposed surveys were needed for MVP’s application to the Federal Energy Regulatory Commission (FERC) for eminent domain status. In considering MVP’s right to survey before receiving FERC approval, the Circuit Court reviewed the eminent domain laws in West Virginia, specifically WV 54-1-1, et. seq., and found that eminent domain can only be considered to be vested in a company under WV law if the proposed encroachment on private property will be for “public use.” Since public use would require that a transporting gas line must serve the people of West Virginia with gas along the entire line traversed for reasonable rates, the Court concluded that the MVP could not survey without landowner permission. The Circuit Court noted that Chapter 54 of the WV Code need be applied very strictly as eminent domain statutes operate in direct conflict with private property rights protected by the West Virginia Constitution. HB 2688 and SB 245 would eradicate the current statutory requirement that a gas company’s only use or take private property for projects that directly benefit West Virginians.

The mountain valley pipeline is owned, at least in part, by EQT and its subsidiaries. HB 2688 is sponsored by WV Delegates Bill Anderson (Wood), Frank Deem (Wood), Roger Romine (Doddridge & Tyler), Tom Fast (Fayette), Steve Westfall (Jackson), C. Lane (Kanawha), Josh Higginbotham (Putnam), Jason Harshbarger (Ritchie) and Zatezalo (Hancock).

HB 2688 is currently in the House Energy Committee.