The Virginia State Water Control Board voted on Friday not to revoke a permit allowing a natural gas pipeline to be built across streams as it winds its way across the state’s southwest corner.
The Mountain Valley Pipeline is one of two pipeline projects touching parts of West Virginia and Virginia. The second project, the Atlantic Coast Pipeline, would cross part of the Chesapeake Bay watershed on its path to North Carolina. Both had earned federal permits in support of their construction, but several have been revoked or challenged over the last year.
Virginia had approved water quality permits for both projects in 2017, but the Mountain Valley Pipeline has since logged a large number of environmental violations. Virginia Attorney General Mark Herring and the state Department of Environmental Quality sued the project on Dec. 7 over more than 300 violations between June and mid-November, mostly related to improper erosion control and stormwater management.
The governor-appointed board decided to reconsider the permit but opted to uphold it after a four-hour, closed-door meeting, during which the board consulted with its attorneys and DEQ staff.
Protestors who oppose the Mountain Valley Pipeline shouted “Shame!” as the seven-member board revealed its decision. A group of union workers hired to build the pipeline and seated in an opposite corner of the room — many of them unemployed while work has stopped — applauded.
Board members Robert Wayland and James Lofton said they recently visited some of the sites where the pipeline was under construction to see the water quality violations for themselves.
“I saw sediment and erosion controls that had failed… and the sediment that was escaping from the right of way,” Lofton said of the visit before abruptly revealing the board’s decision. “I’m deeply concerned about that, but I’m also deeply concerned that the board simply does not have the authority to revoke the permit.”
The state board could have allowed the projects to proceed under their federal water-quality permit from the U.S. Army Corps of Engineers but decided instead to issue its own permits under Section 401 of the Clean Water Act, which came with additional requirements. Board chair Heather Wood explained that that move was as unprecedented as a decision would be to revoke it, and that the board did not take it lightly.
The board held the special meeting at a hotel in Richmond’s Bon Air suburb to allow room for the more than 200 people who have previously overwhelmed pipeline-related hearings.
About 50 police officers lined the room’s walls to maintain order at the meeting, where public comments were not accepted and “outbursts” resulted in attendees being escorted from the room. The officers formed a line between the board and attendees — some of them shouting and crying — as the crowd reacted to the board’s unanimous vote.
Skirting rules that did not permit signs at the meeting, some protestors wore shirts with the words “Our Water, Our Lives” printed on the front, and others taped “Revoke” signs to their clothes. While the board was in its closed-door meeting, several began to chant and sing songs until staff said the singing was too loud for a hotel setting.
Problems and decisions involving the Mountain Valley Pipeline could have implications for the Atlantic Coast Pipeline, which has stopped all of the construction that had begun in West Virginia as federal permits have been called into question. Some tree-clearing for the project began in Virginia last year, but major construction has not. The Mountain Valley Pipeline demonstrates the difficulty of protecting water quality while building a pipeline across mountainous terrain and hundreds of stream crossings.
Though thousands of public comments urged the board to deny the Mountain Valley permit altogether, or to require individual permits for each time the project crossed a stream, the board issued the overall permit with 16 conditions that they said go beyond what the federal permit requires. The board then reopened the permit to public comment last summer after construction led to hundreds of water quality violations when heavy rains hit steep slopes that had been cleared of trees.
Lofton said at the Friday meeting that revoking the state permit would jeopardize those provisions while allowing the project to potentially proceed under its federal permits anyway.
“The board is very sympathetic to the landowners and people closest to the pipelines,” Lofton said. “That’s why we approved the 16 conditions. I am deeply concerned we will lose the 16 provisions that are in the board’s certification if we attempt to revoke the certification.”
David Sligh, conservation director for Wild Virginia, one of several groups that has opposed the project, disagreed with that reasoning. Before the decision, he said the state board “definitely” had the authority to revoke the certification because members made their approval contingent on the project’s compliance.
Indeed, the certification states that it “is subject to revocation for failure to comply with the above conditions and after proper hearing.”
“It says, ‘We can revoke this if you don’t live up to it,’” Sligh said, paraphrasing. “Since those conditions became part of the federal permit, that’s one of the reasons we think there is no question they have reserved the right to [revoke it].”
The board members also said their decision considers the state’s ongoing actions against the project for water quality violations, and they don’t want to “handcuff the commonwealth’s ability to apply enforcement,” as board chair Heather Wood put it.
The board’s motion on Friday urged the state to pursue “swift and vigorous prosecution and enforcement action” against the project but fell short of calling for a stop work order or injunction that could be placed on the project until it is back in compliance.
A 17-page letter sent to the board a day before Friday’s hearing outlined what signatories considered the board’s legal authority to revoke the permit or call for an injunction until violations are corrected. Lawyers from the Chesapeake Bay Foundation, Wild Virginia, the Southern Environmental Law Center and a half-dozen other organizations signed the letter.
Considering the number of lawsuits filed against nearly every permit granted to the pair of pipeline projects, their fate is likely to be decided by the courts. Early last week, a federal appeals court said it would not reconsider a decision to throw out a key permit for the Atlantic Coast Pipeline that would have allowed it to cross two national forests, including parts of the Appalachian Trail.
Judges have reversed three federal permits that would have allowed the Atlantic Coast Pipeline to cross national parks and trails or to impact endangered species, halting construction while Dominion Energy, the project’s backer, regroups to appeal.
The decision last week to reject Dominion’s appeal on the Appalachian Trail permit came in a lawsuit filed by the SELC on behalf of the Sierra club and other organizations. In a press release, SELC said the decision should send the project “back to the drawing board.”
The Atlantic Coast Pipeline “could reroute,” said SELC senior attorney D.J. Gerken, “but instead it should scrap this boondoggle and stop running up a bill it wants to stick to customers.”
Dominion officials contend that the pipeline is essential to meet growing energy demands along the East Coast and to replace coal-fueled power generation with natural gas. But, with so many federal permits currently rejected by the courts, the Atlantic Coast Pipeline had to stop all construction activity. Construction on the Mountain Valley Pipeline has stopped around all stream crossings but continued in some areas.
Pipeline workers who have worked on each of the projects filled four rows of the meeting room during the hearing on Friday, wearing small yellow stickers in support of the project.
David Butterworth, a representative for Pipeliners Local Union 798, acknowledged the sediment and erosion issues that plagued Mountain Valley Pipeline construction last year but pointed to “an abnormal amount of rain” that contributed to the problem.
“I’m sure our guys are doing what the state has asked them to do to control the erosion. We’re not against doing it right,” Butterworth said, pointing out that state regulators at the time didn’t require them to do more. “Just tell us what we gotta do, you know?”
“We just always take a black eye if there’s a problem,” he continued. “It’s not like we’re not willing to fix something.”
In an attachment to their letter, environmental lawyers said that fixing violations that are ongoing should have been the board’s first priority before granting the project de facto permission to continue.
“If this pipeline never gets built where they want it built because of some of the lawsuits, [the board is] going to be even more embarrassed that they let this damage happen for no reason at all,” Sligh said. “We could have miles and miles of carnage out there that never leads to a pipeline.”