Maryland’s attorney general wants a federal court to dismiss Columbia Gas Transmission’s lawsuit over a proposed pipeline.
In paperwork filed in U.S. District Court, Attorney General Brian Frosh argues that, “because the state has sovereign immunity, this court lacks the power” to rule on the matter.
“We are vigorously defending Maryland’s right to refuse a pipeline company’s efforts to drill under state land,” Frosh said in a news release. “The U.S. Constitution does not allow a court to compel the state to grant an easement in a case like this one.”
At issue is Columbia’s plan to use a horizontal drilling technique to burrow a pipeline from an existing facility in Pennsylvania to connect with a new pipeline in West Virginia. Proponents say the natural-gas pipeline is critical for economic development in West Virginia’s Eastern Panhandle. Opponents say the project threatens the environment and drinking water.
In July 2018, the Federal Energy Regulatory Commission approved construction of the line.
Columbia, a subsidiary of TC Energy, has negotiated voluntary easements for 18 privately owned properties along the proposed route.
But the company still needs easements for four tracts of publicly owned land, according to the court documents. Three of those are federal properties managed by the National Park Service. The fourth, part of the Western Maryland Rail Trail, is owned by the state.
In January, the Maryland Board of Public Works unanimously voted against granting the easement under the rail trail.
In May, Columbia sued the state Department of Natural Resources. Under its power of eminent domain, Columbia is asking the U.S. District Court to condemn about 0.12 acres for a 50-foot-wide and 102-foot-long easement, so the company can tunnel the 8-inch pipeline under the rail trail. The company also seeks “immediate access to and use of the easement” and “just compensation and damages.”
“The legal action is not a direction in which we prefer to proceed,” Carol Wirth, spokesperson for TC Energy, wrote in an email Thursday. “As a company, we are proud of our commitment to working collaboratively with landowners and delivering the project in a safe and environmentally responsible manner. In fact, we have successfully reached agreements with all private landowners along the project route in Maryland and West Virginia and have received necessary approvals from the Federal Energy Regulatory Commission, as well as the Maryland Department of Environment.”
Frosh’s motion to dismiss, filed on Monday, states that, under the 11th Amendment to the Constitution, “a state’s immunity from suit limits federal court jurisdiction.”
That limit is subject to three exceptions, the document states. The state can consent to the suit. Congress can limit state immunity in some specific cases. And immunity can be limited in cases against state officials acting in violation of federal law.
Frosh argues that none of those exceptions apply in this case.
According to online court records, the case is moving on some other fronts as well.
U.S. District Judge George L. Russell III has referred the case to U.S. Magistrate Judge Timothy J. Sullivan in an effort to settle the lawsuit through mediation.
Russell also has scheduled a hearing on Aug. 13 to consider pending motions in the case.
“The court will refer this case to a United States Magistrate Judge for a mediation to be scheduled as soon as practicable,” Russell wrote.