In the contemporary climate movement, new oil and gas pipelines constitute nothing less than an existential threat. The scholar Andreas Malm argues, for example, that humans have a moral obligation to destroy and sabotage fossil fuel infrastructure; he titled his 2021 book, appropriately, How to Blow Up a Pipeline. Most environmental groups have opted instead to take pipeline companies to court, filing impassioned briefs about how additional fossil fuel infrastructure could devastate people and the planet. Just last week, international environmental groups currently seeking criminal liability of a French energy company for its proposed pipeline in Uganda described their legal action to reporters as a “huge step toward climate justice.”
But some recent legal challenges to pipelines have derived from an arguably less lofty—or at least more dispassionate—provenance: the hallowed American value of private property. Three families scattered across northwestern Virginia have an ongoing lawsuit against the Mountain Valley Pipeline that originates not from an ideological standpoint, not out of concern for the climate threat the pipeline poses or its potential for environmental degradation, but from the constitutional violation of their property rights that they believe it poses.
And while all of the environmental challenges to the Mountain Valley Pipeline were thrown out of court this summer, this case has a chance at surviving—because it isn’t concerned with the climate or ecological impact of the pipeline.
“My clients don’t want this pipeline on their land because they view this as their land,” said Mia Yugo, the Roanoke-based attorney who represents petitioners Cletus and Beverly Ann Bohon, Wendell and Mary Flora, and Robert Matthew Hamm and Aimee Chase Hamm against the Federal Energy Regulatory Commission and the Mountain Valley Pipeline corporation. “Some of it’s been in their family for generations. They don’t want to sell, and they don’t want a private company coming in and taking it.”
This case is part of a burgeoning trend of private landowners challenging pipeline companies on the unlawful use of eminent domain, or the ability of the government to claim land for public use. In Iowa, an ongoing saga regarding a network of carbon dioxide pipelines proposed by carbon-capture companies has united predominantly conservative farmers and environmental activists on the issue of taking privately owned land for corporate gain.
“I think this is something that every American can identify with, because property rights are so central to traditional American values,” said Yugo. “There’s this inherent sense that this is my land, and if I don’t want to sell it to a private entity I shouldn’t have to because I’m American.”
The oil and gas industry has irreparably polluted the atmosphere, destroyed ecosystems, and spent billions of dollars to cover it all up and deny responsibility, and Americans still haven’t turned on it en masse. Will fossil fuel companies’ violation of private property—with the blessing of the federal government—be the issue that can turn pipelines from a leftist cause to a bipartisan concern?
“Politically, the property rights angle is very, very potent,” said David Bookbinder, former chief counsel for the Niskanen Center and the Sierra Club. “It’s stronger both for procedural reasons and because courts understand: Hey, that’s someone’s backyard you’re driving that pipeline through. Environmental issues are not as easy for courts to grasp.”
Yugo is clear on one point: Her clients are not anti-pipeline activists. They’re not even against the construction of the Mountain Valley Pipeline.
“We’re not saying, don’t build pipelines period, or we hate pipelines, that pipelines should be banned across the country,” she said. “We’re saying if Congress really wants to build this pipeline, then Congress needs to have a vote to take Cletus’s land for this particular project. But they don’t want to do that because there’s no political accountability.”
The legal theory behind Bohon v. FERC concerns a principle of constitutional law called “nondelegation,” which is basically a complaint that Congress has outsourced some element of its power to another entity that isn’t supposed to have that power. In this case, that entity is the Federal Energy Regulatory Commission, the agency that controls interstate pipelines. The Bohon case is the first nondelegation challenge of a natural gas pipeline. Yugo and co-counsel Christopher Collins’s argument challenges the constitutionality of the Natural Gas Act, which in 1938 established FERC’s authority to functionally authorize private companies to take private land to construct pipelines.
It can be difficult to see how eminent domain, a government tool to reclaim land for infrastructure that benefits the public, can be utilized by a private company to build infrastructure to transport its own goods for export. The Mountain Valley Pipeline, upon completion, would ship natural gas from Appalachian gas fields to other parts of the United States. It’s infrastructure that would transport a commodity owned by private companies to be sold in other markets, and will not service those who live along the pipeline’s path.
Projects that can take private land through eminent domain are supposed to be “common carriers,” or projects that provide some public good and can be utilized by all citizens. The idea of a common carrier dates back to the railroad construction era, when the government liberally employed eminent domain to build train routes; a project theoretically has to fulfill a number of “duties” to the public to qualify. But according to attorney Robert McNamara with the Institute for Justice, those requirements have been “substantially watered down” in recent decades.
In 2019, for example, the Iowa Supreme Court issued a decision against landowners who had sued the state’s Utilities Board for granting powers of eminent domain to the companies behind the Dakota Access Pipeline, which shipped oil from the Bakken shale in Montana and North Dakota to be sold in markets outside of Iowa. The utilities board argued that the pipeline served a public good of creating jobs, which was rejected by the court. The court did decide, however, that the pipeline’s enabling U.S. participation in the international oil and gas market was beneficial enough to be deemed a common carrier.
“The procedures for becoming a common carrier in a lot of states are laughable,” said McNamara. “And under the Natural Gas Act, FERC doesn’t actually examine whether a pipeline is a common carrier.”
To that end, the basic argument behind Bohon is that with the passage of the Natural Gas Act, Congress unconstitutionally gave authority to FERC that allows it to exploit citizens’ private land for the profit of private companies.
“The court could say that every piece of land that Mountain Valley Pipeline took by eminent domain is effectively invalid consent,” said Christopher Collins, describing a potential outcome of their case. “If that were to happen, [Mountain Valley Pipeline] would probably abandon the project, just like the Atlantic Coast Pipeline when they were facing something similar. But I think more broadly, Congress is going to have to amend the Natural Gas Act because this is a clear problem here.”
The majority of legal challenges to the Mountain Valley Pipeline have been concerned with environmental impact and brought by organizations that include the Sierra Club, Appalachian Mountain Advocates, and the Wilderness Society. In July, legislation passed by Congress to suspend the debt ceiling included stipulations driven by West Virginia Senator Joe Manchin that effectively mandated the completion of the Mountain Valley Pipeline. One of those stipulations, Section 324, threw out all of the environmental cases from the Fourth Circuit, where environmental organizations had received favorable rulings that blocked or reversed crucial permits.
The constitutionality of Section 324, which Spencer Gall with the Southern Environmental Law Center told me was intentionally written to target the environmental cases against the Mountain Valley Pipeline, has been hotly debated. But because the Bohon case is concerned with FERC’s power, it has a strong argument to survive the debt ceiling bill’s attack on challenges to the Mountain Valley Pipeline. And if the courts apply Section 324 to the Bohon case, Yugo and Collins argue, that would constitute Congress throwing out litigation that challenges its own overreach. (To use Yugo’s words from an August 7 brief: “The Founders are rolling in their graves.”)
Collins added that if the D.C. Court finds that Section 324 in the debt ceiling bill does apply to the Bohon case, making that provision unconstitutional, “the environmental challenges in the Fourth Circuit Court would be back in play. That is the nightmare scenario for the Mountain Valley Pipeline.”
Arguably the most challenging handicap of the climate movement is that it invokes relatively abstract ideals: environmental collapse that has not yet (entirely) happened, the well-being of future generations not yet born. But ownership, for better or for worse, is an extremely intuitive value for Americans. To that end, property rights–focused arguments against pipeline companies are not, said Gall of the Southern Environmental Law Center, “a climate agenda under the guise of property rights.” But they do tap into a growing national awareness of how the government facilitates large corporations’ disenfranchisement of Americans.
“Traditionally you build a pipeline where the land is cheap, and the land is cheap where the people are poor,” says Bookbinder. “Poor people do not frequently have the wherewithal to find lawyers and try to fix this and balance the scale somewhat, and FERC couldn’t care less what happens to people or their property.”
While resistance to pipelines has typically been framed as an issue of the environmentalist left, Gall suggests that growing awareness of oil and gas companies’ government-facilitated overreach gives it more bipartisan appeal.
“There are undoubtedly folks,” says Gall, “who had one point of view about the fossil fuel industry until they encountered it close up, and have seen how the system is rigged in favor of that industry and may have changed their point of view about what is right and good and best for the future of our country’s energy policy.”