Amid federal criminal probe and a state lawsuit, why hasn’t the Virginia DEQ stopped work on Mountain Valley Pipeline?

FLOYD — Nearly one year ago, Gov. Ralph Northam celebrated newly passed legislation he touted as an expansion of Virginia’s ability to protect its waterways.

The two bills established a process for the Virginia Department of Environmental Quality to stop work on large natural gas pipelines if it determined there was a “substantial adverse impact to water quality,” or if such a threat was “imminent.”

“From the Blue Ridge Mountains to the Chesapeake Bay, and all the rivers and streams in between, our water quality is of paramount importance to our health and our economy and I will protect it as long as I am governor,” Northam trumpeted in a March 16 press release.

The governor also added an emergency clause to the bills, putting them into effect immediately.

In retrospect, he needn’t have bothered.

Fifty weeks after the governor’s press release, the DEQ hasn’t used those powers to stop work on the Mountain Valley Pipeline, despite the fact that the DEQ and a state contractor recorded more than 300 violations of erosion, sediment control, and stormwater regulations on the MVP between June and November.

That’s according to Attorney General Mark Herring, who sued the pipeline’s developers in December.

“The whole idea behind those bills was to make sure they had the authority to stop work when problems arose,” said Sen. Creigh Deeds, D-Bath, who carried the two bills outlining the stop work process for DEQ.

“I think they’ve had the opportunity to stop work. If they’ve not utilized the powers they’ve had under those bills to the maximum extent possible, I’m disappointed. But there’s not a whole lot I can do about it.”

Pipeline opponents responded to Northam’s announcement last year with skepticism, but they’re still frustrated that DEQ hasn’t acted more aggressively since then.

“I thought we had a right to expect that DEQ would use the authority as the statute is written,” said David Sligh, conservation director for Wild Virginia, which is involved with litigation against both the Atlantic Coast and Mountain Valley pipelines.

“Even if you just look at the state’s lawsuit against MVP, you can see that certain kinds of violations, including multiple discharges to streams and to peoples’ property, have been happening over the course of many months. To say that any of those circumstances didn’t involve both harm and imminent harm is absurd, frankly, and it’s an abdication of the authority that DEQ got.”

The agency did halt work after runoff from a right-of-way cut in Franklin County buried Cahas Mountain Road beneath more than a half-foot of mud in May. The delay didn’t amount to a formal work stoppage, however. A few weeks later, MVP again briefly stopped work of its own accord.

“When we did notice a number of observations in the field when they weren’t paying close enough attention to their E&S [erosion and sedimentation] requirements, they said, ‘We get it. We’ll stop working, send our crews out, make sure the E&S requirements are in place, and off we go,’” said Melanie Davenport, DEQ’s water permitting division director.

“We said, ‘OK, but show us before you start work again.’ They fixed the problem.”

Davenport, who wrote a June guidance memo about how DEQ inspectors should implement the authority enabled by Deeds’ bill, said the power to hand down a stop work order applies only to specific sites, not to the entire length of the pipeline. Further, she said, the DEQ hasn’t used this authority on the Mountain Valley Pipeline because workers always moved quickly to fix violations.

“When you ask somebody to correct a violation, and they don’t, that’s when you think about escalating your enforcement response,” Davenport said. “This is a company where, for the most part, when we have said, ‘This was wrong, you didn’t do that within 24 hours’, they immediately rectified the situation.”

The majority of the violations noted by the attorney general, she said, were either cases in which the company or inspectors noticed a problem and then fixed it, or administrative issues involving paperwork.

“If folks think these 300 violations are ongoing, that’s a misconception,” Davenport said.

“It’s not like there were 300 places where sediment-contaminated water was flowing off the right of way and hitting state waters.”

Sligh argued otherwise.

“The fact is the damage is still occurring out there,” Sligh said. “I visited several sites on Saturday and saw mud flowing off the right-of-way. I saw huge amounts of dirt that were unsecured. I saw a landowner’s pond that was filled with mud, and I saw flood plains and trenches filled with water.

“Those conditions without question constitute eminent harm and in some cases present harm that is continuant every day. To me, it is totally unacceptable that DEQ is refusing to use the power it has.”

The Federal Energy Regulatory Commission, the federal body that approved the pipeline in late 2017, did hand down a stop work order on MVP last July after the U.S. Court of Appeals for the 4th Circuit vacated its permits to build in the Jefferson National Forest.

That order was lifted on all but a few miles by Terry Turpin, director of FERC’s Office of Energy Projects, who wrote in an Aug. 29 letter that the best way to protect the environment was to complete construction and restoration as quickly as possible.

Throughout the summer, fall and winter, pipeline monitors have continued to document violations of Virginia’s erosion and sediment control regulations, as have state inspectors.

Deeds said he personally saw problems, too.

“When I went down to a couple of games at [Virginia] Tech this year, I drove the backroads down through Giles County, and the land looked pretty beat up,” Deeds said. “If they didn’t issue stop work orders, they missed an incredible opportunity.”

The accumulated violations finally led Herring to file a lawsuit against MVP in December, writing in a news release that “serious and numerous violations of environmental laws”  caused “unpermitted impacts to waterways and roads in multiple counties in Southwest Virginia.”

Pipeline opponents cheered the lawsuit, but also questioned why Herring had not asked for an injunction to stop work on MVP while the suit played out.

“For some reason the commonwealth seems bound to allow the pollution to continue, even though it has asked a state court to force the company into compliance,” said Tammy Belinsky, a Floyd County lawyer engaged in the fight against the pipeline.

Like Sligh, Belinsky believes the DEQ had statutory authority to stop work on the pipeline even before the passage of Deeds’ bills. She referred to the resulting code section as a “piece of sh*t.”

“All they did was add process and procedure that protects the polluter,” Belinsky said. “They already had the authority to stop work.”

Belinsky’s frustration speaks to a movement that has been repeatedly blocked in its efforts to get MVP to stop construction.

“None of what has happened is surprising,” said Greg Buppert, a lawyer with the Southern Environmental Law Center. “It’s not surprising to the public that raised concerns about the steepness of the terrain and likely water quality problems throughout the process.

“We agreed with the public that it would be very difficult if not impossible to avoid serious harm to water quality when these projects were constructed. With the Mountain Valley Pipeline, that concern has been borne out.”

Opponents of the pipelines have fought them from the start, packing public hearings and flooding FERC and other state and federal agencies with comments. They used tree-sits and other civil disobedience to slow construction while a series of lawsuits played out in state and federal courts.

Now, activists are converging on today’s meeting of the State Water Control Board, which voted 4-3 in December to consider revoking its certification of MVP. Sligh and Buppert both said they expect the bulk of that meeting to take place in closed session. Buppert said the board likely will be “deciding the contours” of the process for its reconsideration of the MVP certification.

“What they say when they come back out is going to be of interest,” Sligh said. “We don’t know what they’re thinking. It’s possible they’ll come out and tell us the framework for how they’re going to proceed, or there’s always the possibility of them coming out and saying, ‘We’re not going to have a hearing at all.’”

In the meantime, opponents continue to pursue a variety of avenues to stop the pipeline. They’re pushing to overturn FERC’s approval by questioning its approval of a key variance that allowed the project to continue.

They’re continuing to battle in court, including by arguing that key rulings against the Atlantic Coast Pipeline apply to Mountain Valley as well. They’re publicizing law firms that are openly shopping for fed-up investors who might be interested in suing the pipeline’s parent company.

As a result, the cost of the Mountain Valley Pipeline continues to escalate.

Deeds believes the judicial system represents the best chance for halting pipeline construction. And he suggested that his bills may ultimately play a role in that.

“I told people from the beginning that the way to stop these projects will ultimately be in court,” Deeds said. “Legal action has been the only thing that’s slowed these projects down. If DEQ has not done everything they’ve could under these statutes, that’s more ammunition for people in court.”

Natalie Cox, a spokeswoman for Mountain Valley Pipeline, did not respond to a request for comment.

However, The Roanoke Times reported Thursday that an attorney for Equitrans Midstream Corp., one of the companies in the joint venture building the pipeline, told the water board in a letter that “unilateral action by the board at this time cannot amend or invalidate” the project’s certificate from the Federal Energy Regulatory Commission “or otherwise block construction.”

In their own letter, though , a group of attorneys representing nine environmental groups fired back at the pipeline company.

“The harm that is being caused all along the pipeline’s path has proven that the ‘reasonable assurance’ of water quality protection expressed in the certification issued in December 2017 was not justified,” they wrote.

“There is still time for the board to take effective action. To fail to act now would be particularly tragic should the pipeline be abandoned or the route changed substantially. All of the harm to our waters and pain inflicted on residents will have been caused for no
reason.”