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Henry Howell III: Why aren’t the Governor and the Attorney General stepping up to help Red and the other tree sitters?

What Would Henry Howell Do?

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by Henry Howell III

“THAT ALL POWER IS VESTED IN, AND CONSEQUENTLY DERIVED FROM, THE PEOPLE.”    ARTICLE I, SECTION 2, THE CONSTITUTION OF VIRGINIA

After suing the commonwealth of Virginia to establish one-person, one-vote in the Virginia, my father, “Howlin’ Henry” Howell, was elected in 1965 to the Virginia State Senate to fill the seat that he had just won for the City of Norfolk before the United States Supreme Court.

Following Howell’s arrival in the Virginia Senate, a bill came to the floor with a small amendment attached to it, allowing Chesapeake & Potomac Telephone Company to increase its payphone charge form ten cents to fifteen cents.  Howell stood on the Senate floor and argued that the extra nickel C&P would make off of payphone users had value to many Virginians. He recounted the story of his working as a water boy one summer at a lumber plant for fifteen cents an hour. He said that when you worked for fifteen cents an hour, you learned two things: the value of a nickel and to get a better job. Howell went on to question the sponsor of the amendment, Senator Bill Hodges of Chesapeake, whether any of his motivation to add the amendment was related to his representing C&P as a legal client. Senator Hodges withdrew the amendment and probably never forgave Henry Howell for calling him out publicly.  The General Assembly later elected Senator Hodges circuit court judge in Chesapeake.  Henry Howell would later appear before Judge Hodges as a lawyer.  What price did Henry Howell pay in calling out power?

Fast forward some fifty years, and we hear the deafening silence of Gov. Ralph Northam in the face of continual government harassment of a property owner, Red Terry, on her own land.  All these brave, courageous, intrepid tree sitters must be wondering where their Governor and Attorney General are, as the economic powers of interstate, out-of-state pipeline companies are using our government to enforce a federal judge’s order for private companies to profit by taking people’s land under federal condemnation procedures.

Let’s be clear; these pipelines are being built to make money.  The companies would not build them if they did not. Their stockholders would fire their board of directors and officers, like Dominion CEO Tom Farrell, if the pipelines were built in the public interest – as determined by the Federal Energy Regulatory Commission – but did not produce a healthy profit.

When he was Lieutenant Governor, Ralph Northam owned stock in Dominion Energy and used that ownership to remain silent, claiming a conflict of interest, as Dominion wielded its power in the General Assembly to usurp the authority of the State Corporation Commission and to freeze electric rates at unfair rates. Northam then proclaimed the Northam-Herring-Saslaw doctrine of accepting unlimited contributions from Dominion, Appalachian Power (APCO) and other powerful corporations with monopolistic powers. Northam claimed that to do otherwise constituted unilateral disarmament vis-a-vis Republicans. So Democratic and Republican politicians continued to receive hundreds of thousands of dollars in contributions from Dominion and APCO, and in this year’s General Assembly, Dominion and APCO won yet again.

Why aren’t the Governor and the Attorney General stepping up to help Red and the other tree sitters? The Governor and the Attorney General have not even taken the time to investigate whether their state agents are violating Red’s property rights and Constitutional rights. If they had taken that time and devoted the resources to determine whether the state, through its own officers and those of its localities, are violating Red’s rights as a citizen and property owner on her own land, they would have learned that the state and local law enforcement officers and that the National Forest officers are outside of their jurisdictions arresting and harassing tree sitters. State and local officers are ignorantly enforcing a federal court order that grants no property rights to the Mountain Valley Pipeline (MVP) or Atlantic Coast Pipeline (ACP).

What has happened to date is that federal judges have issued preliminary injunction orders, allowing the contractors on the owner’s private property for solely construction purposes that FERC has approved, and prohibiting the owners from interfering with those activities. These injunction orders may only be enforced with the federal court’s contempt power. Also important to point out is that the federal injunction order applies only to the owner of the property, over which the court has personal jurisdiction with the power to fine or imprison the owner. The owner will be entitled to a hearing to show cause why he or she should not be held in contempt, and what would be the appropriate sanction for being in contempt of the court injunction.

Let’s be clear: MVP and ACP have not obtained a single property right from any owner through their federal condemnations.  In addition, the federal court has no power to transfer property rights from the private owners to the pipeline companies, unless and until those companies pay just compensation pursuant to a final condemnation order (that the court will enter only after the court determines just compensation and awards it to the owner).  Which means, of course, that the state and local officers and their governments are exposing themselves continuously to civil rights lawsuits.  The state and local police are trespassing on Red’s private property.  The pipeline’s private security agents are trespassing on Red’s property.  In appears as though they are all acting under color of state law which makes the state liable for their actions. 

The harassment of Red and the other tree sitters could have been completely avoided if the Governor and the Attorney General had simply done their jobs looking out for these brave, inspiring tree sitters.  The Governor says that hundreds of thousands of dollars from Dominion and APCO and his ownership of Dominion stock do not influence his decisions as Governor AT ALL. OK, Governor, we’re all ears: prove it.