Educate yourself and know you can fight this!
If you are reading this, you have most likely received notice from a pipeline company stating its intent to take your land for its pipeline. The notice is probably in the form of a pre-condemnation survey letter or an easement offer. Please remember that this offer is a perpetual easement, meaning they live on forever. What should you do?
Understand the process. If this project is an interstate pipeline, you should immediately sign up with the Federal Energy Regulatory Commission as an INTERVENOR. You have a limited amount of time to do so. If you fail to do so in time, you WAIVE YOUR RIGHTS to challenge any FERC order or authorization on the project moving forward.
In some states, YOU DO NOT have to let the pipeline company on your land to survey it. Do not let anyone from the pipeline company on your land until a court orders you to do so.
YOU SHOULD NOT sign a pipeline easement right away. Do not let a land agent pressure you into signing an easement agreement. You have time to consider your options, to find a lawyer who actually cares about you and your rights, to resist the pipeline company’s attempts to get on your land, and to negotiate or refuse to negotiate a pipeline easement. These are your rights.
CONSULT A LAWYER. You have the power to get a lawyer at no out-of-pocket cost to you. Ask an eminent domain lawyer to come talk to you and your group of landowners and get a sense of how they might work for you and others.
EDUCATE yourself about the proposed project. This is not a done deal! Remember this is a proposed route and project. Get as much info about the proposed pipeline as you can find. They almost never have all of the state and federal permits when they start this process with landowners. It almost certainly does not have all the green lights it needs at this stage.
This is a very important first step. If your project is an interstate pipeline project, then the Federal Energy Regulatory Commission will be involved. The time period for intervention varies, but it’s not long. You need to act quickly. Look at your particular notice to figure out your deadline for intervening. You might wonder why is it so important to become an intervenor? If you do not register to become an intervenor, you will waive all your rights to challenge any FERC order or authorization during this process. Trust us: This is crazy but you can’t legally challenge and defend your property unless you sign up to intervene.
What is an “intervenor?” According to FERC’s Frequently Asked Questions, “An intervenor is an official party to a proceeding and enjoys distinct advantages over those who only file comments. Intervenors have the right to: participate in hearings before FERC’s administrative law judges; file briefs; file for rehearing of a Commission decision; have legal standing in a Court of Appeals if they challenge the Commission’s final decision.” FERC also notes, “As a general rule, you should intervene when you may be materially affected by FERC’s decision on a specific case, project or policy.
"Intervention gives you the right to challenge FERC’s decisions in Court. Non-intervenors can not take the FERC to court.” Those materially affected include all landowners on the route, and others with strong interests, such as neighbors and businesses that fear direct impacts. More detail are here:
https://www.ferc.gov/ferc-online/ferc-online/how-guides
https://www.ferc.gov/ferc-online/overview
All landowners on the route—and others with strong interests, such as neighbors and businesses that fear direct impacts—should sign up to be intervenors. Adjacent landowners and businesses will be affected so encouraging them to sign up gives them a voice in this process that they would not otherwise have. Organizing multiple sign up sessions at a local library or community center to assist folks through the sign up process is an excellent way to increase the number of folks who will be able to submit comments during the process. This also starts to create a bond between community members and awareness around next steps. Take this opportunity to create a mailing list to quickly and easily reach out to folks when next actions are required.Here is a link to the FERC wbsite to learn how to sign up to become an intervenor: https://www.ferc.gov/how-intervene
Why do this? Time is your best friend. Don’t be rushed. Stretch the timeline to make room for the lawyers to do their work and for community resistance to gain momentum. For example, in Virginia, we resisted allowing the pipeline’s surveyors on our lands, which delayed the surveys for a year. In the end, the pipeline company got the right to come and survey, but we stalled the process for a full year, and folks on the first route fought the survey process for even longer—nearly two years. This created time for groups to form and awareness about the project to spread.
Each state has different laws. For example, in Oregon, pipeline companies are not allowed to survey without landowner permission or a court order saying they have control of the land (via eminent domain proceedings). When landowners resisted the Jordan Cove pipeline, this slowed down the pipeline's ability to meet the compliance requirements to obtain needed state permits. The pipeline company was able to satisfy some of these permit requirements by using high resolution photography, but the pipeline company won’t be able to satisfy other permit requirements until after it is able to take land by eminent domain.
This creates a Catch-22 barrier for the pipeline companies: they need to get on the land to gather the information needed for their permit applications, but they cannot get on the land through eminent domain until after they get their required permits. Of course, landowners can always consent to letting the pipeline company come onto their properties, but doing so actually helps the pipeline company get the information it needs to be able to take that land. That is why many landowners who allowed the pipeline companies on their properties in the early years were sorry they had done so.
Check your state's laws or ask a lawyer for clarity on pre-condemnation survey rights. Know your rights regarding eminent domain specifically by state:
http://pstrust.org/about-pipelines/landowners-guide-to-pipelines/
Pipeline companies and many land agents are often bullies. No matter what they tell you, you don’t have to sign an easement right away, and it is almost never in your best interest to do so. The land agents will often tell you that the pipeline is a done deal. Most pipeline companies proceed with getting easements from landowners long before all the permits are in place to build the pipeline. It is counterintuitive to us as landowners to think they would spend millions of dollars before they know they can build for certain, but the money they spend on easements is a drop in the ocean compared to the total cost.
And the more easements they secure, the more they can say that the public supports their pipeline. They don’t want to use eminent domain to take people’s land because it costs them a lot more money and time to take you to court. It also looks bad for their public relations. It shows resistance to the project. They will go to great lengths to get you to sign with a land agent.
Many landowners sign an easement agreement without a lawyer because they are afraid, intimidated, and bullied. Land agents will try to convince you that there’s nothing you can do to stop this project and that you should just sign now. Wait until you find a lawyer. If we had simply signed in the early days of the ACP fight, they would have cleared the route in most of our county and done as much of the work to get the pipe in the ground as they could. This would have irreparably harmed the community for a project that was in the end cancelled and never built.
Land agents will often lie to landowners and put incredible pressure on them to sign easement agreements. They will try to make you feel powerless and use common sales tactics, offering a deal that is only good for a few days and will not be offered again. Our experience in Nelson County shows the highest paid easements were the ones signed in the last year of our six-year fight.
Land agents are not your friends, and they are not looking out for your best interests! There is no standard easement form. These easements vary wildly from pipeline company to pipeline company and even from one landowner on a route to another. You should never sign anything if they are pressuring you until you talk to a landowner-side lawyer. You have time.
Know your rights regarding eminent domain specifically by state:http://pstrust.org/about-pipelines/landowners-guide-to-pipelines/.
Working with a lawyer can be scary and intimidating. I certainly felt this way. There are many good lawyers out there who specialize in eminent domain and who will help you get good terms on a settlement for your easement with no money out of pocket from you. They will only get paid once you settle, and they will usually only receive a percentage of the money above and beyond the highest amount last offered to you before you hired them. That means you get to keep 100% of the highest offer the pipeline company has made to you and a percent after that will go to your lawyer. “I can’t afford a lawyer” is a concern that many landowners have. Rest assured that you can have a lawyer, and you should. You can read more about this in the action item #4, Get a Lawyer. Or see the PRPC’s list of lawyers in the resources section.
Pipeline companies will promise jobs and highlight the few seemingly good things that can come from the project. In the end, it’s just another taking of private land by a for-profit company. These takings benefit the company’s shareholders and leave landowners with easements that significantly reduce the value of their property, prevent landowners from using their land the way they had envisioned, create danger for humans and the environment, attract other infrastructure projects to be built on your land alongside the pipelines, and leave the owners holding the bag to keep paying property taxes in perpetuity on the land that is now encumbered with pipeline easements.
Meanwhile, half of the pipelines in the US are empty because there is a glut of pipelines from years of over-building. We do not need more pipelines – pipeline companies get a guaranteed 14% return on investment from FERC to build their projects. That is why they say these pipelines are “needed.”
Pipeline land agents usually are not honest about the real impact of the pipeline easements they peddle, and they often outright lie to landowners, telling them that this project won’t affect your life's investment. Is that even legal? You bet, especially after you sign their paperwork that excuses them from any oral promises and representations that aren’t specifically spelled out in the written agreements they get people to sign. They’ve been doing it to thousands of Americans for decades under the guise of energy infrastructure. It’s time for this to stop. Speak up at every opportunity while educating yourself.
Pipeline land agents usually are not honest about the real impact of the pipeline easements they peddle, and they often outright lie to landowners, telling them that this project won’t affect your life's investment. Is that even legal? You bet, especially after you sign their paperwork that excuses them from any oral promises and representations that aren’t specifically spelled out in the written agreements they get people to sign. They’ve been doing it to thousands of Americans for decades under the guise of energy infrastructure. It’s time for this to stop. Speak up at every opportunity while educating yourself.
Engage with your county commissioners or city council members for any information they might have received about the project. Your county board of supervisors may have a meeting that you can attend to gather more information. This is an important forum for landowners to educate supervisors about how the community feels about the project.
County officials may have already been courted and “educated” by the pipeline company and easily swayed with empty promises or dangling carrots that might put members of the community at odds with one another. Pipeline representatives certainly took this tack as they saw public sentiment building against the ACP.
Continued presence by landowners at public meetings adds an additional level of accountability for the elected officials. As the officials see the impact on neighbors and friends, they become more deliberate about their decision-making. Another important part of speaking out at public forums is that it gets your comments into the record. This is important when legal battles begin down the road.
The pipeline company is supposed to host meetings in the affected counties to explain the project and answer any questions. These meetings are often missed by community members because the pipeline companies are only required to place a notice in the local newspaper. It is not in the pipeline company's interest to have lots of upset citizens showing up and voicing concern, so they purposefully try to avoid true public notice.
Many of these meetings happen in places seemingly far from the proposed route, and the representatives they send are woefully incapabable of addressing concerns from the landowners and the community. Even so, it is worth showing up, expressing concern, asking questions, and recording (even on video if you can) the answers you get. The answers and exchanges that you record could be helpful to your cause later on..
One of our trusted lawyers, Carolyn Elefant, has created this excellent and detailed document about how to protect your rights, individually and as a community: “Knowing and Protecting Your Rights When an Interstate Gas Pipeline Comes to Your Community: A Legal and Practical Guide for States, Local Government Units, Non-Governmental Organizations and Landowners On How the FERC Pipeline Certification Process Works and How You Can Participate”:http://lawofficesofcarolynelefant.com/wp-content/uploads/2010/06/FINALTAGguide.pdf
Starting on page 22, this document from Pipeline Safety Trust describes several major issues for property owners near pipelines: http://pstrust.org/wp-content/uploads/2016/12/pst_LandOwnersGuide_2016-web.pdf
Pipeline Safety Trust also provides this state-by-state guide about your rights in the eminent domain process: http://pstrust.org/about-pipelines/landowners-guide-to-pipelines/
FERC offers these overviews for becoming an intervenor in the FERC process: https://www.ferc.gov/ferc-online/ferc-online/how-guideshttps://www.ferc.gov/ferc-online/overview
This page from the Pipeline Safety Trust is a good place to start if you are trying to figure out what pipelines are near you, who operates and regulates them, and why they are there:https://pstrust.org/about-pipelines/beginners/
In this comprehensive 2016 guide from Pennsylvania’s Department of Environmental Protection, the department’s task force presented recommendations in six major categories, designed to drive wider public discussion on the critical, complex, interrelated environmental, and community issues that Pennsylvania faces in the development of the infrastructure needed to get gas to market: https://www.dep.pa.gov/Business/ProgramIntegration/PipelineTaskForce/Pages/default.aspx
Pipeline Safety Coalition is a national pipeline safety advocacy organization working in the public interest. The organization’s vision is to support a citizenry that is aware, informed, and engaged regarding fossil fuel pipeline safety throughout its entire life cycle: from wellhead to consumer, and from planning, siting, and construction to abandonment and decommissioning. Here is its website: https://pipelinesafetycoalition.org/
Now that you know your rights, Joyce will teach you how come together with your community so that you don’t have to fight alone:
