To lawyers, the word "and" between two clauses in a statute means that the requirements of both clauses must be met (aka "conjunctive"), while the word "or" signifies that either of the requirements are enough ("disjunctive").
So you might think that when asked to interpret whether a statute that allows pipeline companies to enter land before a possible taking if those entries are necessary to satisfy regulatory requirements "and" to select the most advantageous route, the Virginia Supreme Court would easily conclude that both are required.
Here's the statute:
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, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities, and for such purposes, by its duly authorized officers, agents, or employees, may enter upon any property without the written permission of its owner if (a) the natural gas company has requested the owner's permission to inspect the property as provided in subsection B, (b) the owner's written permission is not received prior to the date entry is proposed, and (c) the natural gas company has given the owner notice of intent to enter as provided in subsection C.
Va. Code § 56-49.01 (emphasis added).
But no, in Barr v. Atlantic Coast Pipeline, LLC, No. 170620 (July 5, 2018), the 6-1 court held that the "and" between (i) and (ii) really means "or," and as long as a pipeline company shows either, it can enter private property and do its thing.
Read the opinion for what we think is its less-than-compelling analysis. The short story is that the majority concluded it didn't make sense to read the statute in the disjunctive, because doing so would mean pipelines lack the discretion the legislature intended to give them, "for no discernible purpose" -
Viewed through this prism, it is apparent that the language at issue must be read in the disjunctive. If the “and” separating the enumerated provisions were read in the conjunctive, natural gas companies could only conduct those activities necessary to satisfy both provisions. Yet, it is clear that not all activities necessary to satisfy regulatory requirements are also necessary for the selection of the most advantageous route, etc., and vice versa. Moreover, as the landowners have correctly pointed out, the need to satisfy regulatory requirements occurs at an entirely different time from the need to select and/or improve the pipeline and its route. Therefore, the few activities that are necessary to satisfy both provisions would not be necessary at the same time. Thus, by inextricably coupling the two enumerated provisions, any discretion granted to natural gas companies would be taken away for no discernible purpose.
Slip op. at 9 (footnote omitted). This is the second time in recent memory that the Virginia Supreme Court has addressed precondemnation entry under the statute. See this post for a summary of the earlier case in which the court concluded that out-of-state pipeline companies could take advantage of the statute.
Curiously missing from the majority opinion is the canon of construction applicable to eminent domain statutes that they are to be strictly construed against the condemning agency, which our quick look shows is part of Virginia law.
Dissenting Justice Kelsey disagreed. His opinion noted, "[a]ll that matters is that the pipeline company qualifies as a natural gas company under 15 U.S.C. § 717a(6) and wants to enter the private property to figure out whether to one day build a pipeline across it." Slip op. at 18 (Kelsey, J., dissenting).
The key analysis in the dissent is on page 32, where Justice Kelsey addressed the cases cited by the majority in a footnote supporting its conclusion that "and" means "or." He wrote, "[a] review of these 37 cases will show that one one of them has an explanation applicable to our case." Slip op.at 32 (Kelsey, J., dissenting).
Finally, the dissent rejected the conclusion that there would be "no purpose" to deny pipelines the discretion to determine whether and how to enter property:
The majority’s only answer appears to be that “by inextricably coupling the two enumerated provisions, any discretion granted to natural gas companies would be taken away for no discernible purpose.” Ante at 10. No discernible purpose? What about the legislative purpose to withhold from a pipeline company the legal license to trespass onto private property when no “regulatory requirements” make it “necessary” to do so, Code § 56-49.01(A)? This limitation, it seems to me, is the primary, easily discernable purpose of the first precondition.
Slip op. at 38 (Kelsey, J., dissenting).
Barr v. Atlantic Coast Pipeline, LLC, No. 170620 (Va. July 5, 2018)
