Citizen oversight of Virginia’s environmental regulations increasingly looks like a farce

Even after more than two years of being steadily bludgeoned into subservience by the Department of Environmental Quality and the Attorney General’s office over the regulation of a pair of contentious natural gas pipeline projects, Friday’s meeting of the Virginia State Water Control Board was a new low point.

The meeting, mostly conducted behind closed doors as an anxious public waited for hours, concluded with varying flimsy excuses for why the board was backing away from a public hearing on revoking a state water quality certification for the Mountain Valley Pipeline.

Actually, not quite. The finale was more revolting than that.

As board members fumbled through explanations before an increasingly angry audience, Chairwoman Heather Wood abruptly called for an adjournment.

Then, most of the board members beat a swift retreat behind a wall of state troopers, who were necessary, it seems, to protect the citizen board from citizens asking it to do its job and protect their water.

One audience member loudly pointed out that the cops would be more useful lined up at the base of mountains in southwest Virginia to stop the mud running off the pipeline job sites.

To his credit, new board member James Lofton went out to actually talk to people after the meeting as they were all steadily pushed by police from inside the Doubletree Hotel off Midlothian Turnpike, where the meeting was held, to the parking lot, according to an activist’s video.

“The board has the duty to tell the public the basis for your decisions,” David Sligh, a former DEQ engineer, an environmental attorney and the conservation director for Wild Virginia, told Lofton. “Not you standing here in the driveway Jim, I’m saying up there where everyone can hear it.”

Since it began construction last year, the MVP, intended to run from West Virginia into Pittsylvania County, has racked up several hundred environmental violations detailed in a lawsuit filed by Attorney General Mark Herring and is the target of a criminal probe by the federal Environmental Protection Agency.

But neither of those developments have halted construction, which is still fouling private property and waterways with uncontrolled sediment, opponents and landowners contend.

Given the numerous documented Virginia violations — and the prior compliance history of a major pipeline contractor — it was painfully obvious that the water board should rethink the certification it issued in December 2017, when the board was told that the obtuse regulatory process the DEQ had assembled and the pipeline developer’s promises were enough for a “reasonable assurance” that state water quality would be protected during construction.

Reconsidering the water quality certification sure seemed like a sensible idea not that long ago to Lofton, who made the successful motion to hold a public hearing on revoking the permit at his first meeting in December.

Lofton, assistant chief counsel for airports and environmental law at the Federal Aviation Administration, was appointed to the board after Gov. Ralph Northam kicked off two members with expired terms, including one, Roberta Kellam, who had become increasingly outspoken about the DEQ’s oversight (or lack thereof) of the pipelines.

Taken by surprise, the DEQ seemed to drag its feet for weeks about scheduling the hearing, finally calling for a meeting of the board not long after getting a defiant letter from Mountain Valley Pipeline claiming that the board action on the state water permit “cannot amend or invalidate” its license from the Federal Energy Regulatory Commission to build the pipeline.

What’s more, MVP also made the jaw-dropping claim that “it is not clear whether the certification is legally enforceable against Mountain Valley in the first instance.”

On Friday, the board promptly went into a closed session and emerged hours later with a unanimous decision to rescind its call for a hearing, seemingly cowed by the corporate bluster.

Their logic, evidently the best they could come up with despite so much time to get their story straight, went something like this:

• We do not have the authority revoke the certification (which is odd, because the certification itself says “This certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”)
• If we did revoke the certification that we don’t have the authority to revoke, we would lose all the conditions that we placed in that certification (which are obviously doing a bang-up job of preventing environmental damage).
• If we revoke the certification we don’t have the authority to revoke, the Federal Energy Regulatory Commission will disregard the action and allow construction to continue anyway.

It was not the proudest moment for the water board, which has been through hours of ugly meetings over the past two years featuring an increasingly frustrated public looking — sometimes too vociferously — for someone to step up and do something about the pipeline projects, seen as unjustified exercises in shareholder enrichment at the expense of landowners and the environment.

And the few statements board members did make raise more questions than they answer.

Why did the DEQ prepare and push the board to approve a water quality certification that can neither be revoked, nor, if you buy MVP’s argument, even enforced? And if the certification is itself toothless, what’s the point of keeping the conditions imposed by it in place? Couldn’t the board just order a stop to construction to prevent further pollution?

Some board members seem to be suggesting that the federal Clean Water Act does not allow states to revoke certification.

“The Clean Water Act contains no provision for revocation of certification once issued,” board member Robert Wayland wrote in a comment on a Blue Virginia blog post. “There was risk that the Virginia certification conditions that were adopted as part of the FERC license would be deemed ‘waived’ by FERC and the project could move forward without those conditions.

A group of environmental attorneys stridently disagreed in their own letter to the board.

“Section 401 of the Clean Water Act does not limit the authority of the board to revoke the 401 certification at issue here,” they wrote. “Virginia has been specifically delegated authority to implement the Clean Water Act within its borders and its state legislation provides explicit authority to enforce the terms of certificates issued by the board.”

In any event, it’s an issue that could have been fleshed out more thoroughly in public if the board had followed through on its December vote, providing a forum that could have allowed all of us to judge the merits of the arguments and observe which ones swayed the board.

Instead, the people of Virginia were ill-served by a backroom legal briefing and the barest possible fealty to the notion that a citizen board should have to explain itself to the public.

Almost wholly reliant on DEQ staff and the attorney general’s office for guidance, the Virginia citizen environmental boards most in the spotlight — the water board and the State Air Pollution Control Board — seem to have broad authority to protect Virginia’s air and water, as long as they only do what they’re told by their lawyers and the agency.

No one knows this better than Vivian Thomson, a former air board member who chronicled the board’s battle with the DEQ (then, as now, led by Director David Paylor) when the board insisted on stricter permits for a coal-fired power station that Dominion Energy was building in Wise County. (Later, Dominion bragged that the station had “some of the most stringent air quality requirements in the nation for a coal-fired power station.”

Between the water board debacle and Gov. Ralph Northam’s interference with the air board, removing two members seemingly to ensure that the board didn’t reject a crucial permit for a compressor station that is part of Dominion Energy’s Atlantic Coast Pipeline, citizen oversight of Virginia’s environmental agency and the regulations it enforces is looking increasingly like a sad farce.

To perform their proper role, they need to be determined, independently well-versed on the issues and, perhaps most importantly, unafraid of upsetting the apple cart in a state where going along to get along when big business is involved is par for the course.

Lately, they don’t seem up to the job.