For nearly four hours, while members of the State Water Control Board huddled with their attorney behind closed doors, observers we're left to wait and wonder what the board would do about the Mountain Valley Pipeline.
They eventually found out what, but they’re still asking why.
At a March 1 meeting, the citizen panel charged with protecting Virginia’s water voted to withdraw its earlier decision to hold a hearing on whether to revoke a water quality certification it issued for construction of the natural gas pipeline in December 2017.
After emerging from a closed session, several members expressed concerns that the board lacked authority to revoke the certification.
The state’s earlier approval was premised on a “reasonable assurance” that pipeline construction would not pollute nearby streams and wetlands; since then there have been widespread problems with erosion control measures.
Board members said they were relying on advice from an assistant attorney general. But no legal explanation of why the board was powerless to stop construction — or even try to — was provided to the public before the board’s unanimous vote.
Officials with the Virginia Department of Environmental Quality, the agency that handles the board’s administrative work and provides technical advice, were asked for details after the meeting. Several hours later, a news release quoted board chair Heather Wood as saying: “This was a unique situation that required time to ensure the proper legal process was and continues to be followed.”
But the statement, released late on a Friday afternoon, did not say why the board lacked authority to revoke its permit. Asked again on Monday, DEQ spokeswoman Ann Regn referred questions to the attorney general’s office.
Michael Kelly, a spokesman for Attorney General Mark Herring, in turn referred questions about the board’s decision to its members. “We cannot discuss attorney client/privileged legal advice,” Kelly said in an email.
The lack of an explanation frustrated pipeline opponents, who have long argued that the widespread environmental damage caused by clearing land and digging trenches for the buried pipeline was ample grounds for the board to revoke its certification.
“I am troubled by it, of course, but I don’t know what happened behind closed doors and I don’t want to question the individual mindset of the board members,” said Peter Anderson, program manager for the Virginia chapter of Appalachian Voices, one of more than 50 organizations to take a stand against the pipeline.
“But at the same time, it has the appearance of bad faith,” Anderson said.
“The public is so interested in this process and this permit, and I think they deserve a much better explanation for the board’s about-face.”
There’s little question that Virginia’s Freedom of Information Act allowed the board to hold a closed session. The law permits private discussions with the board’s attorney about legal matters and issues “pertaining to actual or probable litigation.”
Environmental groups sued the water board in 2017 over its certification for so-called upland work on the Virginia portion of a 303-mile pipeline that starts in West Virginia. That legal challenge was dismissed, but the possibility of others remains.
Two members of the water board — Robert Wayland, who at first favored a revocation process, and Timothy Hayes, who did not — agreed to speak individually with The Roanoke Times following the March 1 meeting.
Neither would discuss what was said during the board’s closed session. But they offered explanations for the public statements made at the meeting, when several members questioned the panel’s authority to revoke the certification.
State law allows the board to issue, modify or revoke certifications for projects that may impact streams, rivers and other water bodies. For the pipeline, the biggest concern was whether the developer’s plans to control erosion were sufficient to prevent harmful sedimentation from being washed into nearby streams.
According to Hayes, a retired attorney with more than 40 years of experience in environmental law, the state’s certification for the pipeline is merely a condition in a federal permitting process that is governed by the Federal Energy Regulatory Commission.
After FERC’s key approval in October 2017, Mountain Valley sought and obtained the state’s certification for work on the part of the pipeline’s route that did not cross water bodies. That process was closely linked to a second permit from the U.S. Army Corps of Engineers, which applied to crossings of streams and wetlands.
Because the certification alone did not authorize Mountain Valley to do anything, Hayes said, it did not constitute a permit under the State Water Control Law and therefore the board could not revoke it pursuant to that law.
“As a state agency, we can only do what we’re authorized to do,” he said.
More questions were raised by the U.S. Clean Water Act, which states that a federal agency can revoke a certification like the one issued to Mountain Valley, but is silent on the authority held by states.
Wayland, a former administrator with the U.S. Environmental Protection Agency, said he feared that an interpretation of what impact — if any — the state’s revocation would have on the pipeline would fall to FERC, which critics say has a cozy relationship with the pipeline industry.
“I dealt a lot with FERC in my EPA career, and they’re not fundamentally an environmental agency,” Wayland said.
In a letter sent to the water board before the meeting, an attorney for Mountain Valley wrote that it was not clear what weight FERC would give to a revocation by Virginia.
“Mountain Valley’s license to construct and operate the Project was validly issued by the FERC,” Todd Normane wrote. “Unilateral action by the Board at this time cannot amend or invalidate the license or otherwise block construction.”
A representative for FERC declined to say what the commission might do in the event of a state revocation. “It’s the commission’s policy not to speculate or comment on hypothetical situations,” Tamara Young-Allen said.
If the federal agency allowed work to continue in spite of a revocation by the water board, Wayland said, the state would lose its ability to enforce 16 conditions, imposed as part of its certification, that were aimed at tougher environmental protections.
“I had concerns there was a possibility that we would do more harm than good with a revocation,” he said.
But why, critics ask, does the state paperwork contain this language: “This certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”
Hayes said that was a “boilerplate” phrase that slipped into the certification during a two-day meeting in December 2017 that led to the board’s certification of the pipeline. The meeting was marked by confusion and some disorder by emotional spectators as DEQ officials mulled over how to best regulate the largest natural gas pipeline ever proposed for Southwest Virginia.
“Looking back, I don’t think that language should have been in the certification, because it created an expectation on the part of some folks,” Hayes said.
Rather than proceed with a revocation hearing, Wayland said, the board opted to preserve as much oversight as it could for a construction project that is now entering its second year, with large portions of the 42-inch diameter steel pipe already buried 6 to 10 feet deep along steep mountain slopes.
“That train had really left the station,” he said.
Many of the arguments raised by pipeline opponents — such as Mountain Valley’s use of eminent domain to take private land for a corporate venture that will increase the country’s reliance on fossil fuels — were beyond the board’s purview.
“I know that probably sounds like hair-splitting to the people who are very upset about what is happening in their communities and on their land,” Wayland said. “But of course we can only take action pursuant to state and federal law.”
Yet there are two interpretations of the law. The other one, outlined in a 17-page letter from Wild Virginia and other conservation groups, is that the board can and should stop work on an environmentally disastrous project by rescinding its certification.
A lawsuit filed by Herring alleges more than 300 violations of environmental regulations along the project’s snake-like construction zone through Southwest Virginia. And Mountain Valley has yet to reclaim two federal permits that were thrown out by a federal appeals court last year.
As the board’s meeting in a packed hotel ballroom concluded, one pipeline opponent singled out a new member who had originally voted to hold a revocation hearing. “Shame on you, Jim Lofton,” he shouted.
A short time later, Lofton waded into the crowd. For more than 20 minutes, he spoke to distressed questioners, trying to explain his position as a cold rain fell on the gathering outside the Doubletree by Hilton in Richmond. In a video posted to the Blue Virginia political website, he can be seen expressing doubts that state revocation would stop construction. “It’s not going to happen,” he said. “FERC is not going to revoke it.”
Efforts to reach Lofton following the meeting were unsuccessful.
“The board has the duty to tell the public the basis for its decision,” David Sligh, conservation director of Wild Virginia, said during the encounter. “Not you standing in the driveway, Jim. I mean up there, where everybody can hear it.”