By Ken Cuccinelli
The Roanoke Times published two misleading opinion pieces Monday about my office’s involvement in a lawsuit between property owners and natural gas companies in Southwest Virginia. Predictably, only one side of the story was covered. The case involves methane gas being extracted from underground coal beds and a disagreement over how much property owners should be paid by the gas companies that extract it.
In the process of suing the gas companies, the lawyers representing the property owners tried to have the Virginia Gas and Oil Act declared unconstitutional. If they had been successful, it would have been a travesty for their own clients. Without the act, most of these property owners wouldn’t get any royalty payments, so our office intervened to uphold the constitutionality of the act — as is our legal obligation.
The act allows the owners of the gas beneath their properties to collect the royalties to which they’re entitled. Before the law, whoever sunk the first well to extract the methane gas was deemed the owner of the gas and could extract it from under adjacent properties without compensating the adjacent property owners. The act allows the property owners to share in the gas production royalties. As a long-time property rights advocate, I wanted to protect that law and the interests of the property owners.
My office intervened for the limited purpose of defending the constitutionality of the law. As is typical practice, the senior assistant attorney general cooperated with and shared information with both sides in the case. During the process of legal discovery, she cooperated fully with plaintiffs’ attorneys and their discovery requests.
Contrary to media reports, the gas companies get their legal advice from their own attorneys, not this office. The senior assistant attorney general did communicate with attorneys for the gas companies about the interpretation of the act because they shared a common interest with the commonwealth in protecting the law. The gas companies were using the law as their defense, claiming they were following the law when they paid royalties to the property owners.
As long as there is the potential for the act to be attacked again (and we feel there is in this case), sharing information with the attorneys from the gas companies to help uphold the constitutionality of Virginia law is an appropriate practice under the law and is something we are compelled to do to fully represent the interests of the people of the commonwealth.
It is also something that we told the court and the public about a year ago, so this should be no surprise. In our court filing of June 4, 2012, we clearly stated that the gas companies and the commonwealth share similar interests in supporting the constitutionality of the act. In addition, the federal Fourth Circuit Court of Appeals has said that attorneys representing different clients with similar legal interests can share information, including attorneys representing governments.
Of all the assertions made by The Roanoke Times, I reject — in the strongest possible terms — the notion that campaign donations by Consol Energy affected our handling of this case. Consol donates to many Virginia officials, including legislators involved in making Virginia’s energy laws.
Our job is to defend Virginia laws, regardless of who stands to benefit. Consol Energy pushed to have a mine voids bill passed in the 2012 General Assembly session, and I declined to support it.
I have a proven track record of representing the law impartially regardless of whom my donors are. The commonwealth’s largest utility, Dominion Power, also donates to my campaigns, yet several times during my tenure as attorney general, I successfully fought on behalf of its customers against hundreds of millions of dollars of Dominion rate increases. This year, I also recommended discontinuing certain financial incentives Dominion was taking advantage of, which will save electricity customers about a billion dollars over the next 10 years.
This case is no different: Again, I stand with the citizens. As I did when I wrote and pushed for a property rights amendment to the Virginia Constitution, I stand with property owners who rightfully deserve compensation for the gas taken from under their land. That’s what my office’s involvement in this case is all about.
Cuccinelli is Virginia’s attorney general.