A foreign corporation may exercise a Virginia statutory privilege for natural gas companies to enter onto property to conduct surveys, tests and appraisals along proposed pipeline routes, and the Supreme Court of Virginia affirms a judgment for the appellee gas company.
Atlantic Coast Pipeline LLC (ACP) is a public service company organized under the laws of the State of Delaware. It is a “natural gas company” as defined by 15 U.S.C. § 717a(6), and is subject to the jurisdiction of the Federal Energy Regulatory Commission (FERC) under the federal Natural Gas Act. ACP is engaged in FERC’s regulatory approval process to build a natural gas transmission line that would extend from West Virginia to North Carolina, passing through Virginia. This process requires ACP to conduct surveys, test, appraisals and other examinations upon properties located along the pipeline’s proposed routes.
Appellant owns property in Virginia along a proposed pipeline route. ACP sent the owner a letter seeking permission to enter her property to conduct surveys. When she refused consent, ACP provided a notice of intent to enter her property pursuant to Va. Code § 56-49.01. The owner continued to deny access and ACP petitioned the circuit court for a declaration of its rights under Code § 56-49.01.
The owner filed a plea in bar, claiming the statutory privilege only applies to domestic public service companies and the statute impermissibly burdens a fundamental right under Article I, § 11 of the Virginia Constitution. The trial court held that the owner had no constitutionally protected property right to exclude an authorized utility from entering his property for survey purposes.
Code § 56-49.01 provides its entry-for-survey power to “any” corporation or company organized for the bona fide purposes of operating as a natural gas company as defined in 15 U.S.C. § 717a. Both domestic and foreign corporations that are “doing business” within the commonwealth – such as ACP – are included in the definition of “corporation” for the purposes of Title 56.
By its plain language, Code § 56-49.01 applies to foreign natural gas companies as defined by 15 U.S.C. § 717a(6) that do business in Virginia, including ACP.
Article IX, § 5, of the Virginia Constitution, cited by the owner, states that no foreign corporation shall be authorized to carry on in the commonwealth the business of, or to exercise any of the powers or functions of, a public service enterprise. We cannot consider this argument because the owner neither presented it to the circuit court nor raised it in her opening brief on appeal. Its consideration is barred by Rules 5:25 and 5:27. Her counsel took the position that referencing Article IX, § 5 in the opening brief was sufficient to preserve the issue. It is not.
Rule 5:27 requires an argument, and merely referencing a provision is not an argument. The argument is waived.
The owner also contends that Code § 46-49.01 infringes upon her fundamental right to private property in violation of Article I, § 11 of the state constitution.
Today, every state has codified the common law privilege of a body exercising eminent domain authority to enter private property to conduct preliminary surveys without trespass liability. Virginia statutory law has done so for 235 years. Today the Code contains three such statutes: Code §§ 56-49, 56-49.01 and § 25.1-203. In sum, the owner’s right to exclude others is not absolute and does not extend to ACP in the present case. We disagree that the 2012 Amendment to Article I, § 11 created a new constitutional right to exclude ACP from her property. The judgment for ACP is affirmed.
McCullough, J.: I concur in the majority opinion. I write separately to address a premise that underpins the owner’s argument, which is that the Due Process Clause of Article I § 11 of the Virginia Constitution includes a “substantive” component. We have never undertaken the textual or historical inquiry necessary to determine whether, as a matter of original public meaning, our Due Process Clause contains a substantive component.
We ought to leave “substantive” due process and its shabby and disorganized baggage train across the Potomac.
Palmer v. Atlantic Coast Pipeline LLC (Mims) No. 160630, July 13, 2017; Augusta County Cir.Ct. (Ricketts) Henry E. Howell , Benjamin L. Perdue for appellant; Benjamin L. Hatch, John D. Wilburn, Richard D. Holzheimer Jr. Brook H. Spears, Robert W. Loftin for appellee. Stuart A. Raphael, Solicitor Gen’l; Mark R. Herring, AG: Trevor S. Cox, Dep. Solicitor Gen’l; Matthew R. McGuire, AAG, for appellee amicus Comm. of Va. VLW 017-6-052, 15 pp.