What should we make of the State Water Control Board’s surprising decision not to hold a hearing on whether to revoke the water certification for the Mountain Valley Pipeline?
We say “surprising” because in December the board — also surprisingly — voted 4-3 to hold a special meeting to set in motion just such a hearing. Then last Friday, the board voted unanimously not to do anything.
What happened? Well, a closed-door meeting with an assistant attorney general happened. Afterwards, the board announced that, on the advice of counsel, it had concluded it did not have authority to revoke the certification, after all.
Something here doesn’t feel right.
In most policy disputes, the argument is over the wisdom of the policy in question, or the lack thereof. Pipeline proponents say the nation’s economy needs more natural gas. Pipeline opponents say that fossil fuels are bad for the environment and people don’t like their land being condemned, especially by a private company. Those are standard policy arguments — whether the pipeline is good or bad.
What we have here, though, is a more fundamental dispute over facts. Specifically: Does the water board have the power to revoke a certification once it’s issued, or doesn’t it?
This seems an odd question to have an argument about because you’d think it would be pretty black and white. Indeed, the certificate that the board issued to the Mountain Valley Pipeline in 2017 sure seems to say that’s it’s revocable. In fact, there it is in Condition No. 13: “This Certification is subject to revocation for failure to comply with the above conditions and after proper hearing.” Yet last Friday the board huddled with its attorney — from Attorney General Mark Herring’s office — then came out and announced it lacked such authority. How can this be? We have yet to hear a good explanation.
Whether the board should have set in motion revoking the certification remains a policy debate. If the board had said it didn’t think MVP had done anything to warrant revocation, well, that’s a separate question. For the board to say it wanted to retain some oversight over a project that would go forward anyway, that’s a reasonable answer – debatable, but reasonable. But for the board to say it lacked the authority to revoke a certification that plainly says it can be revoked raises a whole different set of questions about just what the heck is going on.
Let’s review the timeline:
• Dec. 7, 2017: The board votes 5-2 to issue the paperwork to the pipeline, and construction begins sometime thereafter.
• Aug. 21, 2018: As violations against MVP mount, the board discusses whether to hold a hearing to revoke the certification but votes 4-3 against doing so.
• Nov. 16, 2018: Gov. Ralph Northam appoints two new members to the board, replacing two whose terms had expired.
• Dec. 13, 2018: The board votes 4-3 to hold a special meeting to discuss holding a hearing on whether to revoke the certification; the two new members appointed by Northam both vote in favor.
• Feb. 12, 2019: MVP tells the board it objects to a revocation hearing, declares that the board lacks the authority to revoke the certification and if it does, pipeline work will continue and the company will sue.
• Feb. 14, 2019: The board sets a March 1 meeting to discuss the matter.
• March 1, 2019: Citing advice from the attorney general’s office, the board declares it lacks revocation authority.
This is a pretty damning timeline, but chronology is not always causality. In a scathing commentary by Fairfax County attorney Jonathan Sokolow on the Blue Virginia website, Sokolow said the board “folded like so many cheap suits.” But why?
The threat of a lawsuit from MVP seems an unlikely deterrent. After all, Herring has already filed suit against MVP for water quality violations. You’d think he’d see a countersuit from MVP as something of a badge of honor to burnish his environmental credentials.
Sokolow darkly raises the prospect — without evidence — that Northam threatened to remove any board members who voted to proceed. This makes no sense to us, either. Some are fond of seeing a vast Northam-inspired conspiracy to ease the MVP and the Atlantic Coast Pipeline through the regulatory system. The facts we see don’t add up to that.
Northam, quite controversially, replaced two members of the Air Pollution Control Board — but their appointments didn’t make a difference in that board’s ultimate vote to allow a disputed compressor station for the ACP. That’s an inconvenient fact for conspiracy theorists. Further, it was Northam’s two appointees to the water board who set in motion that panel’s attempt to reconsider the MVP certification.
To believe the Northam conspiracy theory, you have to believe he (a) was trying to help the ACP but hurt the MVP or (b) misjudged his new water board appointees and then silenced them. Either involves a level of political dexterity unlikely from a governor we last saw almost moonwalking while confessing to once wearing blackface. Also, a water board appointment isn’t a full-time job. It’s not as if these board members have anything to lose. If the governor truly threatened them, you’d think at least one of the four people inclined to proceed with revocation would go public and say so. In all likelihood, what they said at the meeting is the truth — they didn’t believe they had the authority to revoke the certification. That, though, raises other questions, which Sokolow nicely frames up:
n “If Virginia had no authority to revoke its Section 401 permit once it issued it in December 2017, why did Mark Herring’s office approve of language in that permit expressly saying that Virginia could revoke the permit?”
n “If it is so obvious that federal law prevents Virginia from revoking the MVP permit, why did it take Mark Herring 14 months to discover that the advice he gave in 2017 was not valid?”
n And, finally: “Why have the board and Mark Herring not lifted a finger to do what they clearly do have the power to do, and issue a stop work order — or seek a court injunction to do so? If Virginia’s stop work statute does not apply to a situation where a pipeline company is under criminal investigation, has been sued by the state for more than 300 documented violations, and there is a record of ongoing violations, then when would it ever apply?”
Those seem good questions — which deserve good answers. Or even any answer.