By Jonathan Sokolow
Sokolow is a writer and health care attorney living in Fairfax County. He spent more than 20 years working to defend pension and health rights for retired coal miners in Southwest Virginia and throughout Appalachia and is the author of several articles on the law and politics of the pipeline debate in Virginia.
When your attorney writes you a lousy contract, there’s only one thing worse: another attorney telling you that your attorney screwed up.
If you are former Virginia Gov. Terry McAuliffe and the lousy contract concerned Dominion Energy and its now $7 billion and growing fracked gas Atlantic Coast Pipeline, you might feel embarrassed when Virginians learn — after the secret deal becomes public — that you agreed to cap Dominion’s liability for damages before the pipeline was even built.
And the only thing worse than that? When the attorney for the Governor of North Carolina realizes just how awful Terry McAuliffe’s deal was — and that also becomes public.
In early February, we broke a bombshell story on Blue Virginia about a secret $58 million sellout, a pay-to-play immunity deal that McAuliffe signed in December with Dominion Energy. A few days later, we broke another story about two similar secret immunity deals with the proposed Mountain Valley Pipeline.
As we noted, these agreements state that the amounts paid “fully satisfies any and all mitigation responsibilities related to and otherwise fully offsets the direct or indirect forest-related impacts” and “fully satisfies any and all mitigation responsibilities related to and otherwise fully offsets all water quality impacts caused by forest fragmentation.” A third catch-all waiver provides that the amounts paid represents “the full extent of natural resources-related mitigation measures and investments contemplated” for the pipelines.
The timing and language of these agreements strongly suggested that Terry McAuliffe was engaging in good old-fashioned pay-to-play schemes, taking payoffs in return for required state permits.
These stories attracted more than 33,000 readers and inspired a social media campaign by environmental groups. Several hours after the first story broke, the Associated Press ran its own story, quoting Gov. Ralph Northam’s spokesman, Brian Coy, as saying that “the agreement is a good deal for taxpayers and wouldn’t release the pipeline from liability should something go wrong.” Mr. Coy told another reporter that the agreement “does not cede any legal authority to pursue damage claims.” Mr. Coy wanted people to believe that “fully satisfies,” fully offsets” and “the full extent … contemplated” mean something other than “fully.”
Mr. Coy’s habit of parroting the “fully is not fully” folly has led some to give him another avian related nickname: DeCoy, as in the wooden duck whose job is to fool others into flying to their demise.
But “DeCoy” and his former boss, Terry “McAwful,” were not counting on 33,000 people actually reading the liability waivers. Nor were they counting on this new bombshell:
North Carolina, while negotiating its own $58 million pay to play deal with Dominion, could not stomach the Virginia liability waivers. In fact, the General Counsel for the governor of North Carolina insisted on language specifically to prevent those waivers. We now know this because those drafts — and the handwritten notes of Gov. Cooper’s attorney — have just been released publicly.
And as with the Virginia agreements, it is pretty easy to see what happened:
- Gov. Cooper’s General Counsel, made handwritten notes on a draft prepared by the Atlantic Coast Pipeline companies adding language to preserve claims by third parties;
- He prepared a new draft which said that Dominion “will take all reasonable measures … to provide for the restoration and preservation of North Carolina interior forest wildlife habitats.”
- The new draft stated that “nothing in this Memorandum shall be construed as precluding or otherwise barring the State of North Carolina from recovering damages or equitable remedies from Atlantic for spills or leaks stemming from the ACP.”
- The new draft stated that “Nothing in this Memorandum shall be construed as precluding or otherwise barring independent, third party claims regarding the ACP.”
All of these protections for future claims against Dominion were included in the final agreement signed by Gov. Cooper in North Carolina on Jan. 25, 2018. None of those protections are in Virginia’s deals. And yet the North Carolina agreement is front page news in North Carolina — attacked as a “slush fund” deal in which state permits were sold for $58 million — while there has been scant press attention in Virginia for what are far worse deals.
Why are elected officials in Virginia of all political stripes still silent about these waiver deals?
Why is there no public outcry?
Could it be that a wooden duck — a, shall we say, DeCoy — has lulled Virginians into a false sense of security?
How long will that last?