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Abstract

The federalist system of government relies heavily on state law to represent the will of the state’s population as closely as possible. In this Comment, the main discussion will be about how Virginia eminent domain compensation law should be integrated as federal law within Virginia’s boundaries, specifically regarding the Natural Gas Act (NGA). This question of whether state law should be adopted as federal law under the NGA has been answered in several federal circuit courts but has never been addressed by the Supreme Court.

The issue at hand has a deeper effect than one might expect. The Virginia Constitution allows Virginia’s landowners to collect compensation for lost business profits as a result of an eminent domain action. Allowing lost profits would let landowners collect not only the fair market value of their property but also the money their businesses would have made but for the gas pipeline taking. Practically speaking, this would have the effect of getting landowners the money they will be losing, and it would also encourage gas companies to be more selective about the path they take when burying a pipeline. Federal precedent does not recognize the concept of lost profits.

The law in its current form allows for too much uncertainty within the Fourth Circuit. Landowners come into negotiations with Virginia law in mind and gas companies come with federal law in mind. During the negotiations, both sides will meet at a number somewhere between what Virginia law would allow and what federal law would allow. The number is usually based on whether the parties think it is likely the Fourth Circuit will adopt Virginia law. To one of these parties, the uncertainty is an injustice, because either the gas company is paying too much for the land or the landowner is not getting the legitimate worth of his property.

This Comment is premised on the assumption that the latter is occurring. The landowner is the “non-acting” party in a takings case. He did not ask to have his land taken, and he should not have to suffer a business loss because someone else wanted his property for profitable gain. Virginia foresaw this issue and thought it important enough to fix in its constitution, thus, federal courts should respect this move. If we seek justice through the law, then the law should defend the party who is helpless without it.

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