By Sharon Franklin.
For nearly a decade, Michelle and Gary Erb lived on a rustic, 72-acre plot of land east of the Susquehanna River in Lancaster County, Pennsylvania and then it became a construction site for a pipeline that can move 1.7 billion cubic feet of natural gas every day. The Erbs soon found out that Transcontinental Gas Pipe Line Company (Transco), a wholly owned subsidiary of the $8.6 billion energy-infrastructure titan Williams, demanded access to the their land to enable it to build the 200-mile Atlantic Sunrise pipeline that expands the nation’s largest natural-gas pipeline system to the Marcellus Shale. As reported by Nick Sibilla Senior Contributor Forbes Magazine https://www.forbes.com/sites/nicksibilla/2019/03/18/homeowners-take-fight-against-gas-pipeline-land-grab-to-u-s-supreme-court/#3e3e3a406fd5.
As with most eminent domain cases like the Erbs, Transco offered to pay for a six-acre easement. When they declined, Transco authorized eminent domain claim and forced the Erbs to hand over the property anyway. Now after having their land dug up, and more than a year and a half later, the Erbs still haven’t seen a dime for their land from Transco.
The Erbs say“The system as it stands right now is very unfair and very unethical; it is very un-American,” “Right now the gas line companies are just steamrolling over private landowners and taking whatever they want, whenever they want it and with no restrictions by the courts.” The Erbs have felt this judicial steamrolling up close and personal. Even though the The U.S. Third Circuit Court of Appeals ruled that because Transco “already had the substantive right to possession,” due to its Federal Energy Regulatory Commission (FERC) certificate, which granted Transco preliminary injunction for immediate possession “merely hastened the enforcement of the substantive right—it did not create any new rights.” In other words, “the only question was ‘the timing of the possession.’”
The Erbs fought back with the assistance of the Institute for Justice, and countered in its cert petition, “An entitlement to possess land now is substantively different from an entitlement to possess land in the future.” In a standard eminent domain case, “the condemnor or Transco has the option to either purchase the property at the adjudicated price or move to dismiss the condemnation.” After all, Transco may decide to walk away from the property if they’re unwilling to pay the just compensation determined by the court, and the court’s injunction did actually alter the rights of the Erbs in a substantial way:
The Erbs and the Institute of Justice cited, that prior to the entry of the preliminary injunctions, petitioners had the right to exclude Transcontinental and its agents from their land. After the entry of the preliminary injunctions, the company had the right to exclude petitioners from the land. The right to exclude is, as [the Supreme Court] has held time and again, one of the most important substantive aspects of property ownership.”
Many Circuit Courts throughout the United states have conflicting ruling on this issue, and ultimately, only the Supreme Court can resolve this important question. Protecting private property rights shouldn’t be a pipe dream.
Gary Urb sums it up “Transco is taking advantage of a broken system with the lower courts rubber-stamping what the pipeline companies are doing. “Our fight is about more than just our property. It is a fight for everyone that can’t fight.”