Activists stood outside the governor’s mansion in August and read public comments opposing the Atlantic Coast and Mountain Valley pipelines into a megaphone. (Ned Oliver/Virginia Mercury – Aug. 14, 2018)
Since before he took office in January, opponents of the Mountain Valley and Atlantic Coast pipelines, including a list of lawmakers and officials from his own party, have begged and cajoled Gov. Ralph Northam to get tougher on the contentious natural gas projects.
Work on both pipelines is now at least temporarily stalled amid court rulings that have vacated key approvals from federal agencies, which appear to have left those permits vulnerable to legal challenge by rushing their way through the review process.
And with the State Water Control Board meeting next week to consider whether it should require additional scrutiny for the spots where the pipelines will blast, trench or drill across and under Virginia waterways, it could be an opportune time, probably the last chance, for Northam to finally insist on the rigorous environmental review he promised on the campaign trail.
Atlantic has yet to begin construction in Virginia, but the Mountain Valley project has already proven itself incapable of handling the sediment laden runoff from construction that opponents warned the Department of Environmental Quality and the board about during the water quality review last year.
The exposure of the slipshod nature of how federal agencies handled the permitting process combined with the on-the-ground performance, or lack thereof, of measures intended to keep mud from running off the MVP work areas, have knocked big holes in the narrative that the pipeline developers have been spinning, which is that regulators have left no stone unturned in reviewing the projects.
If past is prologue though, don’t expect Northam to seize the moment.
The best evidence that the governor still intends to stay out of this hasn’t been his endless repetition of campaign talking points about protecting property rights or numbing platitudes expressing confidence in the regulatory process, even as federal judges and photos of mud running into streams keep pointing out regulators’ shortcomings.
Rather, it’s something he hasn’t done.
At the end of June, two seats on the Water Control Board came up for reappointment: Robert Dunn, a retired DuPont manager, and Roberta Kellam, a former energy and environmental attorney. Dunn and Kellam were on opposite sides of the split decision last year by the board to award, with conditions, state water quality certifications to the Atlantic Coast and Mountain Valley pipelines. In general, Dunn is seen as a reliable vote for what the DEQ wants the board to do.
The DEQ itself is seen as too accommodating of industry and has faced widespread criticism for how it handled the pipelines. It did however, claim a modest measure of vindication when the same federal appeals court that has struck down federal pipeline approvals left and right upheld the agency’s water quality review for the Mountain Valley Pipeline.
Kellam, on the other hand, voted against issuing certifications for both pipeline projects and, at the last water board meeting in May, supported revoking them.
A governor interested in getting the water board to weigh in forcefully on the violations that have already happened during Mountain Valley Pipeline construction and similar risks posed by the Atlantic Coast Pipeline, which has an even bigger Virginia footprint, might have decided it was time for Dunn, the chairman, to step away from the hassle of managing those increasingly contentious water board meetings.
But Northam has opted to keep both Kellam and Dunn in their seats, though he has not formally reappointed either of them.
“The current members serve at the pleasure of the governor until he makes such a determination,” said Ofirah Yheskel, a spokeswoman for Northam.
Here’s what this is all about: Sure, pipeline opponents are looking to derail the projects, because of the threat that decades more of fossil fuel usage— even if it’s cleaner-burning natural gas— poses to the climate, as well as the trampling of private property rights for dubious public benefit, the environmental risks posed by construction and the possibility that the things could explode, like a brand new gas pipeline just did in West Virginia.
But they are also taking aim at a state review process that seems engineered by the DEQ to avoid taking a serious look at whether the projects can be built and still meet state standards.
Both pipeline projects — Atlantic is led by Dominion Energy, MVP by EQT Midstream Partners — involve clearing a wide right of way for the digging, blasting and other heavy construction to lay the pipe across steep mountain slopes and through hundreds of Virginia waterways.
At the heart of the issue is whether a federal permit, the U.S. Army Corps of Engineers Nationwide Permit 12, is adequate to protect the rivers and streams the pipelines will cross.
DEQ gave up its authority to review the crossings to the corps, perhaps because while the corps permit allows degradation of existing uses, like sediment choking a pristine trout stream, state water quality standards do not.
“Any lowering of water quality will violate this provision in high quality waters, unless DEQ shows a change is justified by economic or social necessity in the area affected by the waterbody impacted,” the conservation group Wild Virginia wrote in its summary of the thousands of comments DEQ has received on the issue. “No such showing can be made here, because even the benefits the companies claim will not accrue in the local communities directly affected by the water pollution that will occur. Failure to fully support all existing uses is an absolute requirement, for which there are to be no exceptions.”
The corps analysis also left out dozens of crossings and affected waterbodies, Wild Virginia says. At least another two dozen were reviewed by “desktop.”
“People have given Ralph Northam a huge amount of time,” said David Sligh, a former DEQ engineer, an environmental lawyer and conservation director for Wild Virginia. “You have to question how in the world the corps did a thorough analysis when they didn’t even put them on the list. … The time is now.”
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