HAZEL F. PALMER
ATLANTIC COAST PIPELINE, LLC
THE CIRCUIT COURT OF AUGUSTA COUNTY Charles L. Ricketts, III,
PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and
McCullough, JJ., and Millette, S.J.
WILLIAM C. MIMS, JUSTICE
appeal, we consider whether a foreign corporation may
exercise the entry-for-survey privilege given to natural gas
companies by Code § 56-49.01. We also consider whether
Code § 56-49.01 infringes upon provisions of the
Constitution of Virginia.
Background and Procedural History
Atlantic Coast Pipeline, LLC ("ACP") is a public
service company organized under the laws of the State of
Delaware. It is primarily "engaged in the underground
storage and transportation of natural gas in interstate
commerce." As such, 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 Natural Gas Act, 15
U.S.C. § 717 et seq. 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 the Commonwealth. As part of
this process, ACP must conduct surveys, tests, appraisals,
and other examinations upon properties located along the
pipeline's proposed routes.
Palmer owns real property in the Commonwealth along a
proposed route. On March 6, 2015, ACP sent Palmer a letter
seeking permission to enter her property to conduct
preliminary surveys. When Palmer withheld her consent, ACP
provided a notice of intent to enter her property pursuant to
Code § 56-49.01. The notice explained that Code §
56-49.01 "authorizes certain natural gas companies to
enter upon property, without permission, for examinations,
tests, hand auger borings, appraisals and surveys for
proposed natural gas lines in order to satisfy regulatory
requirements and to select the most advantageous route."
continued to deny ACP access to her property, and ACP filed a
petition for a declaratory judgment in the circuit court
requesting a declaration of its rights under Code §
56-49.01. Palmer filed a plea in bar, contending that Code
§ 56-49.01 only applies to domestic public service
companies because it is within Title 56 of the Code of
Virginia. She also demurred, arguing that Code §
56-49.01 is unconstitutional under Article I, § 11 of
the Constitution of Virginia because it impermissibly burdens
a fundamental right.
circuit court overruled Palmer's plea in bar and
demurrer. Regarding the plea in bar, it found that the
applicability of Code § 56-49.01 "turns upon a
definition borrowed from [11 U.S.C. § 717a] rather than
an implied definition suggested by its placement within the
Code of Virginia." Regarding the demurrer, the circuit
court noted that the "legal challenges to the validity
of [statutes like Code § 56-49.01 across the country] on
the basis that they [e]ffect a taking without just
compensation have been consistently rejected." (quoting
Charlottesville Division v. Dominion Transmission,
Inc., 138 F.Supp.3d 673, 690 (W.D. Va. 2015)).
Accordingly, it concluded that "[a] landowner has no
constitutionally protected property right to exclude an
authorized utility from entering his property for survey
purposes." We granted Palmer this appeal.
Applicability of Code § 56-49.01 to Foreign Corporations
contends that ACP cannot exercise the entry-for-survey power
of Code § 56-49.01 for two reasons. First, she argues
that a "natural reading" of the statute
"dictates that [it] only applies to Virginia public
service companies." Second, she argues that the statute
must be interpreted to avoid conflicting with Article IX,
§ 5 of the Constitution of Virginia. These arguments
present "purely legal questions of statutory and
constitutional interpretation which we review de novo."
L.F. v. Breit, 285 Va. 163, 176, 736 S.E.2d 711, 718
Unambiguous Language of Code § 56-49.01
analyzing a statute, the Court's primary objective is
"to ascertain and give effect to legislative
intent." Conger v. Barrett, 280 Va. 627, 630,
702 S.E.2d 117, 118 (2010) (quoting Turner v.
Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338
(1983)). "That intention is initially found in the words
of the statute itself, and if those words are clear and
unambiguous, we do not rely on rules of statutory
construction." Crown Cent. Petroleum Corp. v.
Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997).
§ 56-49.01 provides, in relevant part, that
A. Any firm, corporation, company, or partnership, organized
for the bona fide purpose of operating as a natural gas
company as defined in 15 U.S.C. § 717a, as amended, may
make such examinations, tests, hand auger borings,
appraisals, and surveys for its proposed line or location of
its works as are necessary (i) to satisfy any regulatory
requirements and (ii) for the selection of the most
advantageous location or route, . . . [and] may enter upon
any property without the written permission of its owner . .
appeal, Palmer argues that Code § 56-49.01 only applies
to domestic natural gas companies because it is located
within Title 56 of the Virginia Code, which governs
"Public Service Companies." She suggests that if
the statute was intended to apply to "any" natural
gas company, "it would have been placed in ...