RICHMOND — After starting a process that could have pulled a key permit for the Mountain Valley Pipeline, a state board responsible for protecting Virginia’s water reversed course Friday.
On a unanimous vote, the State Water Control Board withdrew its earlier decision to hold a hearing to consider revoking a water quality certification it issued for the controversial natural gas pipeline in December 2017.
Coming after a four-hour closed session, the vote shocked and angered a crowd of pipeline opponents.
“Shame on you!” One person in the audience shouted at the board members as others joined in. “Shame! Shame! Shame!”
In comments before the vote, several members said they had become convinced that the board lacked authority to revoke the certification. They also said that by doing so, the state would lose the regulatory oversight it had through 16 conditions that were part of its initial approval.
James Lofton, who in December made a motion to hold a revocation hearing that was approved on 4-3 vote, said he has since visited pipeline construction sites and seen where efforts to control muddy runoff have failed.
“I am deeply concerned about that,” he said.
But revoking the permit at this point would “handcuff the commonwealth’s ability” to force Mountain Valley to address those problems through the state certification process, board chair Heather Wood said.
Friday’s vote marked the second reversal the board has made on the matter.
Before construction started, the board voted 5-2 in December 2017 to certify the project’s path through Southwest Virginia, finding a “reasonable assurance” that digging trenches for the massive buried pipe along steep slopes would not contaminate nearby streams and rivers.
In August, after the Department of Environmental Quality found multiple failures of erosion and sediment control measures, the board opted not to revisit its decision.
The first flip came in December 2018, when the board decided to take the unprecedented move of convening a hearing to consider revoking its certification, one of several permits that allowed construction of the 303-mile pipeline through the two Virginias.
By the time the board decided to undo that process with Friday’s vote, pipeline opponents were fed up.
“The public should have been told up front that this process was a charade,” said David Sligh, conservation director of Wild Virginia, one of more than 50 organizations opposed to the pipeline.
It’s clear that environmental damage is rampant, he said, and that Mountain Valley and DEQ regulators have neither the inclination nor the ability to make things right.
“They’re not working,” he said of the 16 enforcement tools in the state’s certification that board members were concerned about losing. “Those are empty promises that we cannot rely on.”
In the weeks leading up to Friday’s meeting in a packed hotel ballroom, questions were raised about whether the board could legally put a stop to a construction project that has already received other state and federal authorizations and is entering its second year.
An attorney for Mountain Valley wrote in a letter to the board that approval from the Federal Energy Regulatory Commission, the lead agency overseeing construction, would trump any efforts by the state to stop work.
After discussing the matter behind closed doors for four hours, board members said they had decided to give up on revocation after receiving legal advice from an assistant attorney general.
But there was no public explanation of why the panel, whose seven members are appointed by the governor, lacked the authority to rescind its earlier approval.
Even without a revocation hearing, pipeline opponents say, the state could issue a stop-work order.
State law allows DEQ to order an immediate stop to construction if there is a “substantial adverse impact” to streams or wetlands, or if such an effect is likely to occur.
A lawsuit filed last year by Attorney General Mark Herring on behalf of DEQ and the water board alleges more than 300 violations of state regulations meant to control erosion and sedimentation along the pipeline’s path.
But none of those violations would be grounds for a stop-work order, according to Melanie Davenport, DEQ’s water permitting director.
Not all of the infractions involved substantial adverse effects to water. And the ones that did have since been corrected, Davenport said.
Under state law, problems that have been fixed cannot be the basis for a continuing stop-work order. And any directive to cease construction would be limited to the immediate area of the violation, making a ban on the entire 100-plus-mile length of the pipeline through Virginia unlikely.
“I think that there’s a misconception” about DEQ’s power to halt work on the pipeline, Davenport said.
As with past meetings of the water board, pipeline opponents showed up in force Friday, holding signs, singing protest songs during breaks and sometimes interjecting comments during the board’s discussions.
This time, they were met by a contingent of pipeline construction workers, who sat on one side of the ballroom and at one point were surrounded by opponents who locked arms and chanted.
James Reynolds, who said his job on the pipeline was discontinued earlier this year because of delays caused by legal challenges, said he wanted to see for himself what the board would do.
Construction crews are making every effort to follow the rules, he said.
“You hear a lot of stuff, but I need to go back to work,” he said. “I get a lot of what they’re saying, but we live here, too. And we don’t want to mess up anything as well.”