Judge: Federal Agencies Twisted Rules To Protect Damaging Pipeline
Reprinted with permission from ProPublica.
A week ago, the federal government halted work on a massive pipeline project that runs from Northern West Virginia through Southern Virginia.
The government said it had no choice but to order work on the multibillion-dollar Mountain Valley Pipeline stopped after a federal appeals court ruled that two federal agencies had neglected to follow important environmental protections when they approved the project.
The court had found that the U.S. Forest Service had suddenly dropped — without any explanation — its longstanding concerns that soil erosion from the pipeline would harm rivers, streams and aquatic life. It also found that the Bureau of Land Management approved a new construction path through the Jefferson National Forest, ignoring rules that favor sticking to existing utility rights-of-way.
“American citizens understandably place their trust in the Forest Service to protect and preserve this country’s forests, and they deserve more than silent acquiescence to a pipeline company’s justification for upending large swaths of national forestlands,” Judge Stephanie Thacker wrote for a unanimous ruling from a three-judge panel of the 4th U.S. Circuit Court of Appeals. “Citizens also trust the Bureau of Land Management to prevent undue degradation to public lands by following the dictates” of federal law.
It turns out, those weren’t the only times state and federal regulators bent environmental standards for the project, which began construction in February.
A review by the Charleston Gazette-Mail, in collaboration with ProPublica, shows that, over the past two years, federal and state agencies tasked with enforcing the nation’s environmental laws have moved repeatedly to clear roadblocks and expedite the pipeline, even changing the rules at times to ease the project’s approvals.
Projects like the Mountain Valley Pipeline, known as MVP, require a variety of approvals before being built. Developers and regulators must study various alternatives, describe a clear need for the project, and show that steps will be taken to minimize damage to the environment and reduce negative effects on valuable resources like public lands and the water supply.
But in numerous instances, officials greenlit the pipeline despite serious unanswered questions, records show.
— After citizen groups brought a lawsuit challenging how West Virginia regulators concluded that the pipeline would not violate state water quality standards, the state Department of Environmental Protection dropped its review and instead waived its authority to decide if the project complied with its rules. This effectively ended the legal challenge and paved the way for construction to begin.
— Confronted with a similar lawsuit filed by the same citizen groups, the state and the U.S. Army Corps of Engineers moved to rewrite their rules for how long pipeline construction could block the flow of rivers. Environmentalists fear that, under the plan approved by the Corps, four West Virginia rivers could be left dry for long periods of time, potentially harming aquatic life during construction.
— Developers persuaded judges to speed court proceedings and grant them access to private property along the route to cut down trees, saying they needed to do so before protected bats came out of hibernation. But then, despite guidelines saying no logging could take place after March 31, the Federal Energy Regulatory Commission twice extended the company’s deadline.
Regulatory agencies waiving standards and rewriting rules to pave the way for economic projects isn’t new. West Virginians have watched it happen for decades with the coal industry, as mine operators used variances to avoid strict land reclamation standards or fill streams with waste rock and dirt. That pattern is continuing with the natural gas boom.
“I’ve seen this kind of behavior from agencies before,” said Pat Parenteau, who teaches environmental law at the Vermont Law School. “They start out being strong, but they roll over, especially for these big energy projects that have this national interest, energy security push behind them.”
In its “stop work” order last week, FERC said, “there is no reason to believe” that the federal agencies involved would not “ultimately issue” new permits that would withstand the court’s scrutiny. But until then, FERC ordered that “construction activity along all portions of the project and in all work areas must cease immediately.”
A news release from Mountain Valley Pipeline echoed FERC’s statement that the pipeline permits would be easily reissued. Developers said they would work closely with the agencies involved to resolve the challenges to their work and “we look forward to continuing the safe construction of this important infrastructure project.”
When it is built, the Mountain Valley Pipeline will transport natural gas from Wetzel County, near West Virginia’s Northern Panhandle, to Pittsylvania County, Virginia, crossing about 200 miles in West Virginia and 100 miles in Virginia. It is one of several large transmission pipelines in the works across the Appalachians, part of the ongoing rush to market natural gas from the boom in drilling and production in the sprawling Marcellus Shale formation.
In another ruling that exposed flaws in the government’s pipeline review process, the 4th Circuit earlier this week threw out two permits for a pipeline even bigger than the MVP: The Atlantic Coast Pipeline, a $5.5 billion effort to transport gas more than 600 miles, from central West Virginia to the eastern portions of Virginia and North Carolina.
Chief Judge Roger Gregory wrote that the U.S. Fish and Wildlife Service approved the project without setting any real limits on damage to endangered species, and the National Park Service granted permission for pipeline developers to drill under the Blue Ridge Parkway without determining if doing so was consistent with the road’s protection as a unit of the Park Service.
Jeffrey Olson, a spokesman for the Park Service, said the agency is reviewing the ruling.
Because different permits for pipelines cover different parts and types of construction work, it’s not entirely clear how one court ruling that overturns one permit ultimately affects other parts of the construction. Eventually, such decisions are made by FERC, which is the lead agency for gas infrastructure projects.
So far, FERC has not decided if it will issue a broad stop-work order aimed at the Atlantic Coast Pipeline, also known as ACP. Project developers argue that it shouldn’t. They say the ruling affects only a small part of the route and that the “court’s concerns can be promptly addressed through additional review by the agencies without causing unnecessary delay to the project,” which is scheduled to go online in late 2019.
Aaron Ruby, a spokesman for the ACP and its lead developer, Dominion Energy, said the project has been under review for nearly four years by more than a dozen state and federal agencies.
“The courts have found some errors in the process, and they’ve given the agencies the opportunity to correct them,” Ruby said in an email this week.
Pipeline project opponents say the court rulings are evidence of something else entirely.
“This is an example of what happens when dangerous projects are pushed through based on politics, rather than science,” said Southern Environmental Law Center attorney D.J. Gerken, who represented citizen groups in the ACP case.
‘This Is What They’re Taking From Me’
On a spring morning earlier this year, Mark Jarrell got in his all-terrain vehicle and drove up the hill to the top of his Summers County property.
“This is what they’re taking from me,” Jarrell said, looking out onto the Greenbrier River and Keeney Mountain.
That day, Summers County was quiet. But Jarrell knew it wouldn’t last. About a month later, he heard machines whirring outside. He drove up the hill behind his house and found three machines clearing trees to make way for the Mountain Valley Pipeline — leaving behind a barren, 3,000-foot-long and 125-foot-wide swatch running down Jarrell’s property.
He’d dreaded that day for three years, “but when you see it for the first time, that’s the real punch in the gut.”
As West Virginia’s natural gas industry continues to grow, business boosters and state political leaders portray it as the key to a bright future filled with jobs, tax revenue and prosperity. Some residents in communities along the Mountain Valley Pipeline route see the project as part of that hopeful future.
“This is an infrastructure project putting money into the state,” said Bill Shiflet, an insurance agent in Union, West Virginia.
But others are wary that West Virginia has been too quick to embrace the natural gas rush and projects like the pipelines. They fear this movement is taking the state down the same path as the coal industry. And as construction proceeds this summer, some of their fears are starting to come true.
For Jarrell, the Mountain Valley Pipeline means a swath of brown, barren path snaking up the hillside. The pipeline itself will be buried, and the hillside along the pipeline’s 50-foot-wide operational right-of-way will be reclaimed with grass. But it won’t be the same.
“Now it’s real, it’s not talking about it and worrying about it and thinking about it, it’s happening,” Jarrell said. “And there’s not a damn thing you can do about it.”
Jarrell and many of his neighbors have tried to stop the pipeline, and they have been joined in their quest by state and national environmental groups.
While FERC is generally the lead agency for interstate pipeline proposals, permits and approvals are needed from a variety of other agencies. Environmental groups opposed to the pipelines have challenged the projects at nearly every possible turn, raising issues about local environmental damage, questioning the need for the pipelines and warning of the global warming implications of increased use of another fossil fuel.
Among the many permits they’ve challenged is one called a “401 Certification,” issued under Section 401 of the federal Clean Water Act.
That section was intended to give states a bit of a check on federal authority. It was passed when federal agencies were pushing through large hydroelectric projects that included dams that often upset local officials.
If a state wanted to step in and block such a project, it could refuse certification. States also may attach additional conditions to their certifications. Or they can waive their authority altogether, if they want to.
West Virginia’s Department of Environmental Protection issued its 401 certification for Mountain Valley Pipeline in March 2017, issuing a news release that touted the project’s potential to “transport West Virginia’s abundant natural gas to meet the growing need for power generation” in the Mid-Atlantic and Southeast regions. The DEP directed reporters to the pipeline developer’s own website for information about the “potential economic benefit” of the project.
Local citizens and state environmental groups urged DEP Secretary Austin Caperton to reconsider the permit approval. Caperton refused, and he provided no explanation for his decision. The citizens sued in the 4th Circuit, the federal appeals court that covers West Virginia. (Under the Natural Gas Act, appeals of permits for pipelines bypass local federal district courts and go directly to appeals circuits.)
The lawsuit alleged that the DEP had not really done a required study to determine if the pipeline would harm state waterways. It also said the agency had not required pipeline developers to determine how streams along the route were being used, what the baseline water quality was prior to construction or if the pipeline would “significantly degrade” those waters.
A week before state lawyers were due to explain the DEP’s actions in legal pleadings, the agency said it needed to study whether the information used to issue the water quality certification was adequate or needed to be enhanced. Citizen groups went along with a DEP request that the court send the 401 certification back to the state agency and expressed hope the agency was going to do a better job this time.
Weeks went by, though, and the DEP said little about how this evaluation was being conducted or when it might be finished.
Then, on Nov. 1, Caperton went on statewide talk radio and announced that his agency would not do an additional review. Instead, he said, DEP officials were going to waive their legal authority to decide if the pipeline complied with West Virginia pollution limits.
Waivers are not the normal practice for the DEP, and West Virginia political leaders and regulators usually are staunch advocates of states, not the federal government, calling the shots on environmental matters.
Caperton said a separate state permitting process aimed at controlling stormwater runoff from the pipeline was sufficient and defended the decision to waive the certification authority. He said the DEP would “use all of our resources” to ensure the pipeline would be built safely.
“We feel very comfortable that this pipeline can be installed in an environmentally sound manner and that the environmental impacts ultimately will be zero,” Caperton said on the West Virginia MetroNews program, “Talkline.”
Months later, Caperton’s own inspectors have started identifying problems that belie Caperton’s statement.
Since April, state water quality inspectors have issued citations along the pipeline route in West Virginia: sediment-laden water leaving the construction site; missing or improperly installed runoff controls; failure to add more pollution protections when existing ones were shown to be inadequate. So far, the MVP has not paid any fines for those violations.
Jake Glance, a spokesman for the DEP, defended his agency’s handling of pipeline issues.
“To suggest that we are not performing our statutory duty, or ‘putting our thumb on the scale,’ is simply not true,” Glance said in an email this week. “We remain committed to our mission of protecting the health of West Virginians and our environment, enforcing the regulations passed by our legislature, and ensuring the permits we issue are being adhered to.”
But Angie Rosser, executive director of the West Virginia Rivers Coalition, said her group warned about the water quality violations that DEP inspectors are now finding.
“There are smart people working at [the] DEP who I believe knew these shortcuts would be a problem down the line,” Rosser said. “They knew these pipelines would be a problem for water quality. But my sense is those people aren’t making the decisions. There’s a culture in this state and within our agencies that this is just what we have to deal with as a state reliant on an extractive industry economy.”
Crossing the Rivers
As it winds from West Virginia’s Northern Panhandle to the Virginia-North Carolina border, the Mountain Valley Pipeline will cross four West Virginia rivers: the Elk, the Gauley, the Greenbrier and the Meadow.
For the pipeline to be constructed, each river needs to be dammed and excavated — sometimes with blasting — so that the 42-inch-diameter pipeline may be buried beneath the streambed.
For this work, the Mountain Valley Pipeline needs another type of permit, a Clean Water Act “dredge-and-fill” permit. If the construction is not handled correctly, sediment can increase in the water, oxygen can decrease and aquatic habitats can be harmed. And, of course, while each river is dammed, there is no stream for aquatic life there to live in.
Because of those effects, state officials, working with the Corps of Engineers, put a 72-hour time limit for completing these kinds of stream crossings in West Virginia. That time limit applies to all projects that seek approval under a streamlined Corps of Engineers review process, as Mountain Valley Pipeline did.
The problem is, Mountain Valley Pipeline says each of its stream crossings will take four to six weeks to complete. And despite the 72-hour time limit, the Corps approved the Mountain Valley Pipeline permit anyway, using the streamlined process that saved the developers time, money and scrutiny.
In May, the Sierra Club, the West Virginia Rivers Coalition and other groups sued again in federal court. On June 21, the 4th Circuit issued a stay of the Corps-approved permit until the appeals court could hold an oral argument this fall.
The court order prompted a late-night news release from Gov. Jim Justice.
“This project represents thousands of jobs and millions of dollars being spent to benefit this state, not to mention the long-term stability and boost the energy economy of this country will see as a result of this project’s completion,” the governor said.
Justice said he had talked with DEP officials and “they report that the builders of each segment of this pipeline work hard to protect the waters of this state, and they are doing a good job.”
“While there have been violations that have resulted from the WVDEP’s inspection of this pipeline, these violations have been corrected quickly,” Justice said.
The governor said his administration would “continue to monitor these proceedings closely to determine what role the state may play expediting the construction of this pipeline.”
In early July, the Corps of Engineers rewrote its approval of the pipeline to essentially waive the 72-hour time limit on the river crossing construction. In a court filing, Corps lawyers defended the move, saying the alternative of digging a trench for the pipeline without diverting water flow would cause more environmental damage.
And just this Wednesday, the DEP released a proposal to exempt the stream-crossing method Mountain Valley Pipeline proposed from the 72-hour limit.
Environmental groups said the agencies could instead push MVP to use a more conventional method to bore under the rivers, perhaps reducing the effects.
All sides are now waiting for the court to decide if the new Corps approval, revised to meet MVP’s needs, is enough to lift the stay of the Clean Water Act permit.
Extending Time to Cut Trees
When MVP developers told three federal judges in early 2018 that they needed access to private property to build the pipeline, their lawyers argued that they needed it quickly.
They were up against a strict March 31 deadline — the day federally protected, threatened or endangered bats come out of hibernation in certain areas along the pipeline route, and roost in the trees.
If developers didn’t start cutting down trees quickly, they’d miss that deadline, and they’d have to wait to clear trees until November, MVP developers said in court.
That would have pushed the project’s finish date past the end of 2018, its goal, costing the company hundreds of millions in lost revenue and termination clauses, the project’s senior vice president of engineering and construction testified in court hearings when the pipeline developers sued landowners to secure easements through eminent domain. The landowners were not willing to sell on their own, forcing developers to go to court.
The landowners urged MVP to slow down, but within weeks of each hearing, judges granted possession of the land, allowing developers to start clearing trees. Two of three judges mentioned the bats in their decisions to allow construction on private property.
But March 31 came and went, and MVP hadn’t cut down all the trees it needed along the route. So lawyers asked FERC to extend that March 31 deadline by two months, to allow them to cut down trees on a small portion of the Jefferson National Forest. Tree-sitting protesters had delayed the company’s logging, MVP lawyers told FERC, and the small area of the national forest they wanted to work in was not believed to be home to any of the threatened or endangered bats.
The U.S. Fish and Wildlife Service, whose job is to protect threatened or endangered species, signed off on an extension for MVP to cut trees in the national forest, so long as it was finished by May 31.
“If there is a desire to extend tree clearing past May 31, that answer would change,” Troy Andersen, a supervisory Fish & Wildlife biologist, wrote in an email to the Forest Service, which MVP later filed with FERC.
FERC granted that extension.
In June, MVP asked FERC for another extension, complaining that “obstructionists continued to prohibit Mountain Valley from felling the trees” by the deadline, and asking to keep working through July 31. FERC approved the request. The 4th circuit decision on July 27 put a halt to construction in the Jefferson National Forest, four days before the deadline. At that point, trees had mostly been cut down but hadn’t been cleared from the road. According to the most recent construction status report filed with FERC on July 26, tree-cutting was still in progress, but not entirely finished. As of Friday morning, MVP hadn’t asked for an extension.
“This may seem to be just a minor adjustment allowing them to tree cut until the end of July,” said Bill Price, field organizing manager for the Sierra Club, “but the impact of that to the habitat in the area, I don’t know anyone knows for sure.”
The federal agency also has approved other requests by the MVP developers that residents along the route say affect their quality of life in more straightforward ways.
In recent weeks, residents fought a request for FERC to extend the construction day until as late as 9 p.m. Letters poured in from residents, organizations and county governments, urging FERC to turn it down. Extending construction would create more noise and more workers on the road while commuters try to get to and from work, they said. Longer hours would mean tired, and careless, workers. And, residents said, it was just another example of developers rewriting the rules to make things more convenient for them.
It’s enough that crews have to work during the day, said David Werner, who lives on the pipeline’s route in neighboring Virginia. He was one of the dozens who wrote to FERC, urging the commission to reject the proposal. If construction continues until dark, it disrupts his ability to play ball with his four grandkids or keeps him from sitting on his porch and enjoying the quiet.
FERC approved the request over the residents’ objections.
“They’re already working weekends,” Werner said in an interview. “Now they want to expand well beyond that. They’re violating what they said they were going to do.”
On Wednesday, Jarrell was back on his all-terrain vehicle, weaving through the construction area, which has been mostly abandoned since FERC’s stop-work order. Other than a few workers stabilizing the construction sites — per FERC’s order — Summers County was quiet again.
Jarrell doesn’t think it’ll last.
“They just don’t care, because there’s so much money at stake,” he said. “It’ll get built, no matter what.”
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