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Nelson County Activists Say Atlantic Coast Pipeline Should Rescind "Zombie Easements"

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RadioIQ
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It’s been just over a year since Dominion and its utility partners announced they were scrapping plans for a pipeline to carry natural gas from the fracking fields of West Virginia through Virginia to North Carolina.  Opponents were thrilled, but some say their fight isn’t over yet.

In 2012, David and Nancy Schwiesow retired from jobs in Washington D.C. to a small community in the Blue Ridge.  They built their dream house near Wintergreen – 5,000 square feet with a spectacular view of three mountain ridges.

“The first time we pulled up here and I saw it I burst into tears, because I couldn’t believe it,” Nancy recalls.

But one year after moving in, David got a call from a real estate agent.

“The realtor said, ‘Dominion has just rerouted the pipeline past the entrance to Wintergreen, up through your neighborhood.’  And I said, ‘You’ve got to be kidding.’”

As a corporate lawyer, he knew something about government, power and politics.

“In Nelson County, Wintergreen is by far the most valuable set of properties," he explains. "The people here tend to be more politically connected than other people, so we thought there was no chance they’ll do that.”

But it was soon apparent that backers of the Atlantic Coast Pipeline or ACP intended to clear a 600-mile path 125 feet wide. David Schwiesow stands on his front porch, shaking his head at the memory.

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Credit RadioIQ
Even on a hazy day, the Schwiesows treasured the views from their home near Wintergreen and feared the Atlantic Coast Pipeline would  be an unsightly addition.

“We would have seen the pipeline, plus this open meadow here – that’s a staging area: dump trucks, pipe, heavy construction equipment," he says.  "For 18 months we would have looked at that!”

Armed with approval from the Federal Energy Regulatory Commission – FERC – the pipeline was able to take land from owners, even before agreeing on a price.  Megan Gibson is a senior staff attorney with the Niskanen Center – a Washington-based  think tank that has helped landowners across the country to fight pipelines.

“They say to the court, ‘This is an emergency.  We need to begin construction or tree felling or trench digging or whatever excuse that they’re giving to the court  immediately,  or we are going to lose thousands of dollars, and all of these terrible things are going to happen," she says.  "The court more  often than not grants immediate possession to the pipeline company without having to pay the land owner a dime!”

Owners could no longer build on that part of their property nor could they plant trees, although Schwiesow’s neighbors were assured they would have some control.

“After we build the pipeline, you can select the grass seed to go across the easement,” Schwiesow says they were told.

So with the help of the Southern Environmental Law Center and a half dozen other groups, residents of Nelson County filed several lawsuits and challenged federal construction permits.

“They were delayed for 2-3 years.  The cost of building it increased by a couple of billion dollars. The most powerful corporation in the state, the most politically connected was beat by a bunch of ordinary citizens who put up a fight and who wouldn’t quit.”

In July of 2020, the ACP quit – announcing it would abandon the project.  In light of that decision, you might expect planners to rescind the easements they got from private landowners.

“If only it were that simple!” says Gibson.

The Continued Fight Against ACP

When Dominion and its business partners planned a 600-mile pipeline, they got about 200 easements from landowners in Nelson County alone.  Those agreements made way for the pipeline and prevented owners from building in its path or planting  trees.  Now, the project has been canceled, but those easements are still in place, and some owners are furious.

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Sandy Hausman continues her two-part series on so-called "Zombie Easements."

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Credit Friends of Nelson
Officials with the Atlantic Coast Pipeline say they can't rescind easements along its proposed route until they've restored the land.

When they heard the Atlantic Coast Pipeline or ACP was coming down their street, folksingers Linda and Robin Williams wrote a song.

“We don’t want your pipeline.  We don’t want your pipeline.  We’ll take the sunshine , the water and wind,” they sing.

It would become the anthem for a grassroots movement against a project that terrified land owners like Richard Averitt.

“They were building a 42-inch super high pressure natural gas pipeline which is a giant ticking time bomb," he warns. "Now people will say, ‘What’s the real likelihood that it blows up next to you?’ but you can think of these events as low incidence/ high impact – like a plane crash, right?  A plane crash is not likely, but if you’re in a plane crash it’s a bad deal.”

Averitt and his wife had hoped to build an eco-lodge in the heart of the Blue Ridge Mountains. The pipeline put that plan on hold. 

“If you’re going to build a natural boutique resort where they’ve clear-cut the trees out of the center of it, it just doesn’t work!” he explains.

He and hundreds of neighbors in Nelson County spent six years fighting the pipeline with the help of environmental groups.  Last year, the ACP canceled the project, but the company still holds agreements with landowners.  Most had no choice but to sign over access to part of their property after the Federal Energy Regulatory Commission approved the pipeline.  Joyce Burton, with the community group Friends of Nelson, calls those contracts Zombie Easements.    

“The project is dead, but the easements remain alive and are still trying to suck the life out of our landowners.  I think it’s a perfect description.”

The agreements bar landowners from building roads, barns or homes on land under easement.  They can’t plant trees, and the value of their property is likely reduced.

Dominion says it must keep the easements until restoration is complete – something that could take years. A spokesman told us timing will depend on an environmental review FERC is doing now. Then, he said, the ACP will coordinate with each landowner to decide the disposition of easements.  In Nelson County, trees were cut on only one property, so residents there are puzzled by the delay.

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Credit Friends of Nelson
A community group called Friends of Nelson says only one property in that county requires restoration, and they're not sure why the ACP won't rescind easements now that the project has been canceled.

Meanwhile, FERC is concerned that restoration could be environmentally damaging -- disrupting places where forests are now growing back, but at the Niskanen Center, a Washington think tank helping landowners who oppose the pipeline, lawyer Megan Gibson says repairs are needed.

“In cases where there have been environmental studies done, and it’s been noted that it’s better to just leave it as is, absolutely!" she says, "but in cases where you have a landowner who has had their trees cut down, trenches dug and their land is still a complete disaster, ACP needs to come in and fix what they have destroyed.”

Gibson hopes rules governing pipeline construction will change, making what she considers an unfair process more just.  It’s unclear, however, whether FERC can force the ACP to rescind easements – or whether the commission, viewed by critics as a rubber stamp for the natural gas industry, has the will to do so.  Whatever the case, Richard Averitt says Congress must revise the Natural Gas Act. 

“The whole idea of the pipeline approval and the extreme use of eminent domain is that the public benefit outweighs the sacrifice you’re asking indiv iduals  to make, but when that benefit goes away to not return that land is outrageous.”

Critics are hopeful, since one Republican member of FERC will soon be replaced, creating a Democratic majority that might be receptive to reforms.  

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.