ELLISTON — The roar of construction echoed through the hollow, as a bulldozer pushed dirt on an impossibly steep slope hundreds of feet up the ridge. At the bottom of the slope, a makeshift fence and stack of pallets marked a boundary — the edge of a support camp for tree-sitters who for 10 months have blocked the path up the other side of the hollow.
These are the battle lines on the ground in the fight over the Mountain Valley Pipeline, a 303-mile natural gas transmission line intended to transport gas from the fracking fields of northern West Virginia through the rugged terrain of eastern Appalachia to a compressor station in southern Virginia’s Pittsylvania County.
The encampment on Yellow Finch Lane has become a hotspot over the summer. In July, three protesters were arrested at the camp after others walked onto an MVP work site on a nearby road. An Austin man who had sat in a tree on the site for several months was also arrested after locking himself to a concrete structure and halting pipeline construction for several hours.
Several people occupied the support camp on a day last month, doing chores and talking with one another. They ask reporters not to take photos showing anyone’s faces. More than one individual mentioned the protest against the Dakota Access pipeline at the Standing Rock Indian Reservation as a motivating incident. The protesters, mostly young people, had traveled to Elliston not just from other parts of Virginia, but from West Virginia, Louisiana and beyond.
Above the support camp, a tree-sitter wore a cap, sunglasses and what appeared to be a balaclava. The tree-sitter, who uses they/them pronouns, shouted over the bulldozer’s roar to explain putting their body in the pipeline’s path.
“At this point, I can’t imagine doing anything else,” the tree-sitter said. “The effects of global climate change, U.S. imperialism and colonialism, and too much not taking a stand. I can’t imagine doing anything else. That’s why I’m here. There really is nothing else more important than our planet. There’s nothing more important at this moment.”
That was Monday, July 29, the deadline that MVP had requested a federal judge to rule against the tree-sitters and allow U.S. Marshals to move in and remove them. The day came and went without such a ruling.
On Friday, a federal judge refused a request from the pipeline company to add tree-sitters as defendants to an existing case seeking a preliminary injunction.
While the tree-sitters and their supporters try to hold the line on the pipeline, a small army of lawyers are using the courts to halt construction. So far they’ve succeeded in creating a variety of regulatory obstacles that present significant challenges to the Mountain Valley Pipeline, as well as the Atlantic Coast Pipeline, another project seeking to transport natural gas from northern West Virginia to the Southeast, have yet to overcome.
Both pipelines must obtain new authorization to cross federally managed land in Virginia and West Virginia, the Appalachian Trail and waterways along the entirety of the route.
The Federal Energy Regulatory Commission had initially granted both pipelines permits to cross federal land when it issued Certificates of Public Convenience and Necessity for both projects in the fall of 2017.
However, the U.S. Court of Appeals for the 4th Circuit in Richmond vacated approval for the right of way that MVP received from the Bureau of Land Management, as well as an accompanying decision by the U.S. Forest Service to accommodate the crossing.
The ACP’s crossing of national forest was also blocked by the 4th Circuit in December. The ACP stopped work altogether while its backers, chief among them Dominion Energy, try to appeal to the Supreme Court of the United States. Since then, the 4th Circuit has stripped another key permit for the project, dealing it yet another blow.
The Mountain Valley Pipeline, owned by EQM Midstream Partners and a group of natural gas transportation companies, remains under construction but its projected date of completion has been pushed back to at least mid-2020. As a result its cost has risen to nearly $5 billion, up from an initial estimate of $3.7 billion. An MVP spokeswoman did not respond to inquiries for this article.
MVP attempts to maneuver around legal obstacles
Despite the setbacks, MVP has continued to forge ahead, making moves that look to be attempts to get around the obstacles that currently block its 303-mile path.
In late June, MVP filed paperwork seeking a land exchange with the U.S. government in an apparent attempt to facilitate its crossing of the Appalachian Trail. In a letter to Secretary of the Interior David Bernhardt and Secretary of Agriculture Sonny Perdue, company representative Todd Normane argued that the trade would benefit the Appalachian Trail while “while facilitating construction of the Mountain Valley Pipeline.”
The company argued that the land swap would move the Appalachian Trail off Pocahontas Road and into “a forested corridor.” The letter also suggests the federal government should swap for MVP’s parcel because it’s otherwise “not protected from development.”
MVP’s end goal with the land swap, according to Normane, is “an easement issued by one or both agencies that would be contiguous with a right‐of‐way issued pursuant to the Mineral Leasing Act for crossing the national forest and other federal lands elsewhere on MVP’s route.”
The Mineral Leasing Act is the federal law that the 4th Circuit ruled prevented the U.S. Forest Service from approving the crossing of the Appalachian Trail by the ACP — and by extension, for MVP.
Nathan Matthews, a senior attorney with the Sierra Club, questioned the company’s interpretation of the law.
“As I understand it, what they are proposing to do is get an easement across Forest Service land for crossing the Appalachian Trail, but rather than having it granted under the Mineral Leasing Act, which the 4th Circuit said doesn’t work, getting it granted under a different statute about land exchanges,” Matthews said. “We have questions as to how that would work. In fact, the federal government has questions about how that would work. In a filing to the Supreme Court, the Solicitor General filed on behalf of the Forest Service, and said it doesn’t know whether this would be legal.”
Matthews said the Sierra Club has “serious concerns” about MVP’s land swap scheme, but that it’s waiting to see the Forest Service’s interpretation. Meanwhile, he said, the pipeline still faces other obstacles that extend beyond the Appalachian Trail.
The 4th Circuit previously revoked the Forest Service’s approval of the MVP’s crossing of national forest in Virginia and West Virginia, holding that the agency had violated its own standards and failed to adequately address erosion and sediment control issues.
“The Forest Service has yet to respond,” Matthews said. So “even if MVP gets around the Appalachian Trail issue in other ways, it still has a lot of other work to do” to win approval to cross national forest. When the Forest Service does file a response, two different public comment periods will follow, along with opportunities to file objections, “so there’s still a lot of process to go through,” Matthews said.
Changing crossing methods
MVP faces more obstacles with its permits to cross waterways along the entire length of the route, which have been held up by the U.S. Army Corps of Engineers. The trouble there stems from conditions that West Virginia applied to its certifications for Section 401 of the Clean Water Act. Those conditions include that pipelines greater than 36 inches in diameter receive individual water quality certifications from the state, that construction of all stream crossings be completed in fewer than 72 hours and a prohibition on any structures that impeded the movement of fish.
MVP has not met those conditions, which resulted in the U.S. Court of Appeals for the 4th Circuit vacating authorization by the Huntington District of the Army Corps. Two other Army Corps districts also suspended their authorizations based on another corps requirement, which means the pipeline can’t cross waterways subject to Clean Water Act certifications. West Virginia has modified its water quality conditions for the pipelines, but the Army Corps of Engineers and Environmental Protection Agency haven’t yet approved the revisions.
In the meantime, MVP has requested a variance to change the crossing method of 11 streams and two wetlands in West Virginia from an open cut dry method — which diverts the flow of the waterway while a trench is dug and the pipeline placed — to conventional bores, in which a tunnel is dug beneath the waterway.
The request cited an email from Michael Hatten, chief of the regulatory division of the the Army Corps of Engineers Huntington District, and reported that “boring under non-Section 10 waters is not a USACE jurisdictional activity.”
Does that mean MVP is trying to find a way around the Army Corps?
Derek Teaney, a lawyer with Appalachian Mountain Advocates, did not think so.
“On certain streams, MVP is proposing to bore underneath the streams, which is an activity that does not require corps approval,” Teaney wrote in an email. “I don’t think this will work for every stream, and is a far more expensive construction method.”
‘No evidence has been provided’
While MVP works through blockades of its original, 303-mile pipeline, the company also is moving forward with the regulatory progress on its related 73-mile Southgate extension into North Carolina. In its draft environmental impact statement on the extension, released last Friday, the Federal Energy Regulatory Commission wrote that the project “would result in some adverse impacts” that could be “reduced to less-than-significant levels.”
But a report commissioned by conservation group Appalachian Voices and conducted by Applied Economics Clinic questions MVP’s assertion of the need for the Southgate project at all. The report suggests that the demand projections submitted by PSNC Energy, a subsidiary of Dominion Energy that’s the Southgate extension’s biggest potential customer, have been inflated.
The report notes that PSNC’s capacity would increase by 37% with MVP Southgate, but that the company’s own demand projections increase only 11% increase by 2025 and 24% by 2030.
“No evidence has been provided that PSNC has suffered from an unreliable supply of gas that would require access to another interstate pipeline,” the report reads.
Writers of the report also note that the MVP Southgate project is predicated on the idea that the Atlantic Coast Pipeline will not be built. PSNC has contracted natural gas from the ACP, so if that project does go through, the utility would be awash in gas.
“Depending on uncertain forecasts of customers’ future demand for gas, additional supply resources in the MVP Southgate area may not be necessary,” the report concludes. “In the event that customer demand exceeds available supply, several alternative supply- and demand-side options may be available at lower or equal cost to building new pipeline infrastructure that will lock in investment in gas supply for another 40 years.”
‘Really the only way’
The MVP Southgate fight is just one part of a multi-front battle between pipelines and opponents.
Back on Yellow Finch Lane, the tree sits have continued. This direct action is carried out by different individuals than those fighting the pipelines in court and in regulatory filings, but they’re working toward the same goal.
An activist in the support camp who declined to be identified said that she supported those who were fighting MVP in other arenas, but that she felt called to use different tactics.
“I advocate almost exclusively at this point for direct action stuff, just because they are so deep in working right now,” she said.
“I really support a diversity of tactics when it comes to people doing things in courtrooms, and people taking pictures of violations and trying to get things stopped. But right now in this moment, the work is happening so quickly that I think physically getting in the way until those other avenues can succeed or help is really the only way.”
UPDATE: This article has been edited to change the preferred personal pronouns for one of the tree-sitters quoted.