by Jon Sokolow
Is outgoing Virginia Governor Terry McAuliffe a climate change denier?
Just asking that question is bound to offend the governor and some of his supporters. After all, they would say, Governor McAuliffe has “expanded efforts to reduce emissions” and recently issued a draft regulation setting a carbon cutting goal for the state. They would note that McAuliffe just returned from the 23rd United Nations Climate Change Conference (COP23) in Bonn, Germany, where world leaders gathered to “accelerate and intensify the actions and investment needed for a sustainable low carbon future.” They would point to the fact that, as the copious photos on the Governor’s twitter feed demonstrate, the Governor signed a Memorandum of Understanding in Bonn committing Virginia (after he has left office) to be part of the worldwide Under2Coalition to reduce carbon emissions.
Never mind that close observers have called McAuliffe’s record on climate change “abysmal“ and “marred by contradictions and empty rhetoric.” Never mind that Virginia is a “Johnny Come Lately” to the Under2Coalition, a powerful worldwide climate change group of sub-governments that was formed in May 2015. Never mind that more than 180 jurisdictions preceded Virginia into the coalition, including states like California, Washington, Oregon and Vermont, which were original signatories to the 2015 agreement. Never mind that McAuliffe has spent the past three years as the state’s biggest cheerleader for two massive and controversial fracked gas pipelines, that, according to recent estimates, will produce greenhouse gases equivalent to that produced by 45 coal fired plants or 158 million metric tons per year, more than doubling Virginia’s carbon footprint.
And never mind that, as a lame duck governor who leaves office in January, Terry McAuliffe can do very little to implement the commitments he made in Bonn to move towards a low carbon future.
Or can he?
A Moment of Choice for Virginia and Terry McAuliffe
In a matter of weeks Virginia will face an historic choice for climate change action – or climate change denial. From December 6 -12, Virginia’s State Water Control Board will hold public hearings on whether to allow the 600 mile, $5.5 billion Atlantic Coast Pipeline (ACP) and the 300 mile, $3.5 billion Mountain Valley Pipeline (MVP). The Water Control Board members, all of whom were appointed by Governor McAuliffe, have independent authority to accept or not to accept an as yet unreleased recommendation from the Virginia Department of Environmental Quality and its Director, David K. Paylor, who also was appointed by McAuliffe.
Environmental groups are gearing up to attend the Water Board hearings, which will be preceded by a massive “Water is Life Rally and Concert in Richmond on December 2. They have noted that “while it is the [State Water] board’s decision whether to certify the…pipelines under section 401 of the Clean Water Act, DEQ must provide the board with sufficient information to make that decision. DEQ has not done so. As a result, the board does not have the tools it needs to do its job and approval of water quality certifications for these proposed pipelines would be vulnerable to challenge in federal court.”
By belatedly signing the Under2Coalition MOU, Governor McAuliffe, who is widely rumored to be considering a run for president in 2020, clearly is trying to write the final chapter of his gubernatorial narrative – or the preface to his next campaign. But actions speak louder than words. McAuliffe’s final decision as Governor will be on two methane pipelines that would increase carbon emissions, extend for decades Virginia’s dependence of carbon producing gases and retard real clean energy job growth in the Commonwealth. It is a legacy moment for Terry McAuliffe that will forever overshadow the paper promises he made in Germany. If these pipelines are approved, Terry McAuliffe will forever be where any Democratic politician does not want to be, particularly in a Democratic primary – firmly on the side of climate change denier in chief Donald Trump. Here is why:
The Atlantic “Trump” Pipeline
Less than one week after Donald Trump took office, his administration released its list of his “Top 50” domestic priorities. It included the Atlantic Coast Pipeline, leading some to dub the project the Atlantic “Trump” Pipeline.
Back in January, none of the states through which the Atlantic “Trump” Pipeline or the Mountain Valley pipeline would run had certified that they complied with state water quality standards, and none have done so to date. These certifications are a required precondition for the projects to go forward under Section 401 of the Clean Water Act. Nor had the Federal Energy Regulatory Commission completed its review. In fact, FERC only had one member on its five-member board when Trump took office, leaving it without a quorum and unable to take any action.
None of these actual facts prevented Trump from positing the alternate fact that the permitting process was “done.” That’s right – “done.” By now, this should surprise no one. We have learned that lying is a daily occurrence with this administration. But facts have a way of exposing lies. And the fact is that since Trump’s inauguration, the public debate and the legal, regulatory and political terrains have shifted decidedly against these pipelines. The tide has started to turn – and smart politicians are catching on fast.
The Anti-Pipeline Movement Grows Strong
For one thing, the opposition to these pipelines is growing and is not going away. Indeed, the scope of opposition activity over the past few months has been breathtaking. In June, environmental and community groups representing tens of thousands of Virginians issued a public letter demanding that the pipelines be rejected. In July, activists completed a 150 mile hike, dubbed “Walking the Line into the Heart of Virginia,” to highlight the environmental damage the ACP would cause to some of the most pristine parts of Virginia. The hike ended with a packed protest at Buckingham County’s Union Hill Baptist Church, drawing attention to a mammoth compressor station that Dominion Energy proposes to build in the heart of Union Hill, an 85% African American community – many descended from freedman who had worked there – on land purchased from the plantation owner’s descendants. The social justice issues raised by the Union Hill compressor station received national attention and were placed squarely before the then candidate for governor and now Governor-Elect Ralph Northam. Northam promised to look into it, although he figuratively – and literally – closed his eyes to the issue.
In August, DEQ held public hearings at which hundreds of speakers opposed development of the pipelines and thousands more filed written comments with DEQ, including a methodical analysis that the pipelines cannot meet Virginia’s water quality standards. Activists staged a flotilla down the James River that ended with a protest in Richmond and religious and environmental groups organized two days of protests, vigils and civil disobedience at all seven Virginia DEQ offices. Nineteen Virginians, including landowners, clergy and physicians, were arrested. County commissioners expressed concerns about violation of landowner rights and the city council and mayor of Staunton reaffirmed their longstanding pipeline opposition.
Now all eyes are focused on those December Water Board hearings.
And on Terry McAuliffe.
The Legal Terrain Shifts Beneath McAuliffe’s Feet
While pipeline opposition continues to grow, the legal terrain has shifted dramatically. In August, two federal appeals courts issued landmark decisions that make it much more difficult for these pipelines to survive judicial scrutiny. First, the United States Court of Appeals for the Second Circuit reaffirmed that states in fact have the power to stop pipeline development. The decision came in a case challenging a decision by New York Governor Andrew Cuomo’s environmental regulators rejecting certification of the $1 billion Constitution Pipeline. Cuomo’s appointees took all of 14 pages to stop the pipeline and their decision was upheld by the court.
Four days later, the United States Court of Appeals for the D.C. Circuit vacated FERC’s approval of the Sabal Trail Pipeline in Florida. In language that must have sent shock waves through the boardrooms of pipeline companies, the Second Circuit held that FERC is required to consider the foreseeable effects of developing gas pipelines and that the release and burning of methane is not only “foreseeable” but is the entire point of fracking gas. Much like the cigarette manufacturers who for decades denied the harmful effects of smoking when they knew better, the proponents of what has been marketed as “natural” gas are well aware of what scientists have known for years, that methane is more than 30 times more potent that carbon dioxide as a heat trapping gas.
As if these two decisions were not bad enough for the fracking proponents, in early November the Second Circuit issued an order halting construction for yet a third pipeline, despite the fact that FERC had just approved it. And the courts are not done.
Regulatory Agencies Start to Balk
As the legal terrain shifted, state and federal regulatory agencies took notice. In September, West Virginia’s Department of Environmental Protection, faced with a deadline to defend a federal court case, revoked its previous approval of the Mountain Valley Pipeline and told the court that it needed to “reevaluate the complete application.” Less than two months later, West Virginia announced that it was simply going to abandon its Section 401 review power altogether rather than try to justify the projects. This led environmental groups to note that West Virginia was “not up to the task of protecting West Virginia’s environment” and the 631 streams and 424 wetlands that it would cross in West Virginia. Nevertheless, West Virginia’s previous approval of the MVP suffered from precisely the same defects as the pipeline applications currently pending before Virginia’s DEQ: failure to perform a stream by stream “antidegradation analysis;” failure to require an analysis of the impact that construction would have on the porous Karst rock formations found throughout the proposed routes or a Karst dye tracing plan before construction begins; and failure to require that pipeline developers file detailed plans for erosion and sediment control and stormwater management, which West Virginia admitted are “critically important to minimizing potential water quality impacts.”
Meanwhile, North Carolina’s DEQ announced a delay of its own review of the ACP until at least mid-December, demanding that pipeline developers provide site-specific information “to ensure that downstream water quality is protected,” including a “restoration plan for all stream crossings,” and an analysis of “cumulative impacts” of the pipeline’s 180-mile route through the state. ACP developers submitted their new plans and a few days later, North Carolina again issued a letter of disapproval.
These developments apparently sent pipeline companies into a panic. On September 7, soon after the Senate confirmed two Trump FERC commissioners, thus restoring a quorum, the ACP companies wrote FERC, pleading that it approve the pipeline “at the earliest possible time.” The pipeline developers got their wish – but with a very big twist.
On October 13, the two newly minted Trump appointed commissioners announced that they were approving construction of both the Atlantic Coast and Mountain Valley Pipelines. The release of the decision late on a Friday night led Virginia Senator and former Vice Presidential candidate Tim Kaine to observe the “very suspicious circumstances” under which the approvals were issued. Senator Kaine noted that “clearly, they were trying to rush it without a full complement on the team” suggesting that “their reasoning is probably pretty weak.”
Kaine also noted what he described as a “stinging” dissent by Commissioner Cheryl LaFleur, an Obama appointed commissioner. And it was stinging, as well as rare. The only Democrat on the panel, LaFleur flatly stated that “I cannot conclude that either of these projects as proposed is in the public interest.” LaFleur noted that the pipelines “will have similar, and significant, environmental impacts on the region,” crossing “hundreds of miles of karst terrain, thousands of waterbodies, and many agricultural, residential, and commercial areas.” LaFleur added that “the projects traverse many important cultural, historic, and natural resources, including the Appalachian National Scenic Trail and the Blue Ridge Parkway” and that “it is appropriate to balance the collective environmental impacts of these projects on the Appalachian region against the economic need for the projects.”
LaFleur also rejected developers’ reliance on so called “precedent agreements,” signed by subsidiaries owned by the developers, to demonstrate a phony “need” for the pipelines. She said these sweetheart deals were insufficient and that “evidence of the specific end use of the delivered gas…should play a larger role in our evaluation regarding the economic need for a proposed pipeline project.” In other words, she was not convinced that these projects are necessary.
Senator Tim Kaine Urges Activists to Step it Up as Pipeline Politics is Turned Upside Down
Senator Kaine did not stop at simply criticizing the Trump appointees’ “suspicious” decision and praising the Obama appointee’s dissent. He went on to urge pipeline protestors – particularly those in Virginia – to continue their protests: “If you do not like this decision there are other agencies that still have to weigh in. If you are active about this, please do not stop your activism. Please let these other agencies know what you think about it.”
Senator Kaine’s call to action is a sure sign that the political terrain has started to turn. The new political realities leave Terry McAuliffe – for now – with Donald Trump on the wrong side of history and in conflict with the very commitments he just made at the Bonn conference. McAuliffe refused to join Kaine in his denunciation of FERC’s decision. Instead, McAuliffe appeared on a right wing radio talk show – hosted by Donald Trump’s former state co-chair – to praise the Trump appointees for approving the pipelines.
Tim Kaine is far from alone in showing the way forward for Virginia political leaders. In August, elected officials from both parties called on Virginia’s DEQ to fix its broken review process. As the fall election campaign swung into high gear, dozens of candidates for the Virginia House of Delegates, joined by Justin Fairfax, the Democratic nominee for Lieutenant Governor, announced their opposition to the pipelines. They also signed a pledge circulated by Activate Virginia rejecting political donations from regulated utilities like Dominion Energy, long considered to be a shadow government in Virginia.
On election day, Virginia delivered a loud and clear message to Donald Trump and his toxic politics of hate. In what many have called a political tsunami, Virginia Democrats swept all three statewide offices and erased what many thought was an insurmountable 66-34 Republican majority in the House of Delegates. As recounts proceed, Democrats now have a minimum of 49 seats in the House of Delegates and are within striking distance of creating a 50-50 split.
While it was a great night for Virginia Democrats and a terrible night for Republicans, there was another big loser on election day: Dominion Energy. Thirteen newly elected members of the House of Delegates – fully one quarter of the caucus – were elected on a platform that included signing the Activate Virginia pledge. Justin Fairfax, who also took the pledge and ran as a pipeline opponent, was elected Lieutenant Governor.
During the campaign, now Governor-Elect Ralph Northam went to great lengths to avoid taking a clear position on the pipelines, but he repeatedly reaffirmed that he would make sure landowner rights were protected. If Terry McAuliffe fails to act, Northam’s promise will be tested almost immediately. Mountain Valley Pipeline developers just filed condemnation proceedings against 300 landowners, using the rubric of “eminent domain,” which requires a showing of public good. Hundreds more landowners are certain to be sued by Dominion Energy over the Atlantic Coast Pipeline. It soon will be impossible for anyone to claim they are “protecting” landowners when corporations are in court trying to condemn properties – many held in families over many generations –for projects that have failed to demonstrate they serve any public need. Ralph Northam will have to take sides in that fight – unless Terry McAuliffe saves him the trouble.
It is Time to Choose Sides
While he was in Bonn, Governor McAuliffe shared a panel with former Vice President Al Gore, a climate activist and Nobel Peace Prize winner. Gore, a longtime opponent of fracked gas pipelines, has expressed his pride that his own daughter got arrested protesting pipelines. Meanwhile, in Virginia, 100 people attended a boot camp in September to plan for “direct action” to stop the pipelines and many more have since joined them. The thought of a new Governor Northam – a pediatric neurologist who professes to be an environmentalist and protector of land rights – having to start his administration by ordering law enforcement to arrest homeowners whose land has been “condemned” by for-profit companies, or to fire rubber bullets at protestors concerned with water and environmental justice, as happened at Standing Rock, should bother us all.
Terry McAuliffe has the power to prevent this nightmare from becoming a reality. He would be doing his legacy, and his future political aspirations, a great service.
But more importantly, by acting now – before the December State Water Board hearings – McAuliffe could stop these two massive environmentally irresponsible, job killing, social justice destroying methane projects. He would be doing Virginia a world of good. That would transform his signature on the Bonn agreement into a new beginning for real action on climate change. McAuliffe can join Obama’s FERC appointee, Senator Tim Kaine, Lieutenant Governor-Elect Justin Fairfax, the newly elected anti-pipeline Democratic delegates, supported by landmark anti-pipeline federal court rulings, and stop these pipelines, or he can stand with climate change denier Donald Trump.
The question for Terry McAuliffe, like the science against these pipelines, is as clear as a mountain stream.
Which side are you on?