By Matt Strickler
Strickler is Virginia’s Secretary of Natural Resources.
As Secretary of Natural Resources, I am responsible for overseeing agencies and taking actions that protect the Commonwealth’s environment. I take this job seriously because Gov. Northam and I know how important it is to Virginians’ quality of life and our economy. For that reason, I feel compelled to make sure that readers fully understand the Commonwealth’s approach to securing mitigation for damages caused by the proposed Atlantic Coast (ACP) and Mountain Valley (MVP) pipelines.
On April 4, 2018, this newspaper published an article that made several inaccurate statements about compensatory mitigation in general, and the agreements the McAuliffe Administration negotiated in particular. This important discussion deserves a thoughtful exchange of ideas, so I was disappointed by the inaccuracy of the piece and the inflammatory accusations its author made in it.
The issue at hand is the money Virginia secured from two companies seeking to build natural gas pipelines across long stretches of the Commonwealth to compensate for damage to natural and historic resources that are necessary in any major construction process. Compensatory mitigation is a practice designed to require developers to pay states or localities for the impacts that their planned projects will have on forests, water resources or historic features. For anyone to label this process, which is a common tool to ensure that people in communities are compensated for damages from development projects, as “pay-to-play” is either misinformed or intentionally misleading.
The general approach to addressing development impacts is to first avoid, then minimize, then mitigate. Mitigation offsets impacts that are neither fully avoided nor minimized. It is also limited to impacts identified before a project begins. Normally, mitigation for federally-permitted projects like pipelines is negotiated between a developer and the federal agency with statutory authority over the impacted resource (in this case, the U.S. Forest Service, Park Service, and Fish and Wildlife Service). However, the process has changed significantly since January 20, 2017.
In the Trump administration, these federal agencies have backed away from their mitigation responsibilities. Especially given the fact that they had zero support from federal partners, Gov. McAuliffe’s team negotiated incredibly strong mitigation agreements that focused on the impacts of forest fragmentation along the proposed pipeline routes. Virginia’s natural resource agencies worked for more than two years to develop a comprehensive, science-based mitigation strategy to support FERCs environmental review process under the National Environmental Policy Act.
This was no secret. It was developed in consultation with conservation groups and has been publicly available on the FERC website for more than a year. It was also more robust than any similar analysis performed elsewhere in the country, as it quantified the direct and indirect impacts to ecological functions from forest fragmentation including air and water quality, erosion prevention, groundwater recharge, carbon sequestration, oxygen production, temperature regulation, protection from storm and flood damage, and wildlife habitat.
Putting together such a thorough justification positioned Virginia to negotiate significant concessions from pipeline developers, including an agreement with ACP to provide $58 million to mitigate for forest fragmentation. The agreement clearly defines how the funding will be spent and directs it to projects that will benefit the resources, communities and people who will be impacted.
It is important for all Virginians to know that nothing in these mitigation agreements provides “immunity” or limits the liability of any company involved in pipeline construction, period. These agreements only cover the planned impacts of permitted activities like tree felling. In the event that the companies involved act outside of the scope of the planned activities, Virginia can and will hold them accountable. For example, the Department of Environmental Quality recently issued a notice of violation to Atlantic Coast Pipeline, LLC for tree cutting that was outside the scope of its mitigation agreement and prohibited under Virginia’s State Water Control Law. That action would not have been legally possible if the Commonwealth had somehow waived its rights to do so in our compensatory mitigation agreement with the company.
The Northam administration did not negotiate these agreements, but we believe it is important to correct misinformation about them so that Virginians have the best understanding possible of what their government is doing on their behalf. In this case, we are continuing to hold these pipeline projects to the highest environmental standard the law allows. These agreements clear that bar and ensure that Virginians will be properly compensated for the planned impacts of these projects as they proceed, nothing more, nothing less. The discussion about these projects will (and should) continue.