Before I get into this, let me state up front that I think Mark Herring has done a number of very good things – particularly on immigration, LGBT equality, guns, addressing the opioid epidemic, combating child predators, women’s health and reproductive freedom, protecting the Chesapeake Bay and defending Virginia’s right to regulate greenhouse gases – as Attorney General of Virginia. So this article is definitely not meant to bash AG Herring, simply to urge him on to even bigger and better things when it comes to environmental protection and pushing back against out-of-control corporate power (e.g., Dominion’s).
Specifically, I thought it might be helpful to briefly review what other Attorneys General have done with regard to pushing back against fossil fuel companies’ destructive activities in their states. A few examples that jump out at me include (note: bolding added by me for emphasis):
*In August 2017, New York AG Eric T. Schneiderman put out a statement on “the U.S. Court of Appeals for the Second Circuit uph[odling] New York State’s denial of a water quality certification for the Constitution [natural gas] Pipeline, a critical win for the Attorney General’s office and the State’s authority to take necessary action to protect its waters and natural resources.” Schneiderman added: “New York must be able to do what’s necessary to protect our environment…It would be unacceptable for a pipeline – or any project – to pollute our waters and undermine New Yorkers’ health and water resources…My office stands ready to continue to vigorously defend New Yorkers’ right to a safe and healthy environment from all who may harm it.”
Note that FERC had approved this pipeline in December 2014, “but conditioned that approval on certification from New York State that the project would comply with state water quality standards and requirements.” Then, “Following a thorough review of the project, the Department of Environmental Conservation [DEC] denied the certification on the grounds that Constitution failed to provide sufficient information to demonstrate that the project would meet New York’s water quality standards.” After Constitution challenged DEC’s denial, “the Second Circuit rejected Constitution’s argument, noting that the State is entitled to ‘conduct its own review of the Constitution Project’s likely effects on New York waterbodies and whether those effects would comply with the State’s water quality standards.'”So why can’t we do that here in Virginia with the Mountain Valley Pipeline and Atlantic Coast Pipeline? Is there any reason not to at least TRY?
*Also on the Constitution Pipeline project, note that on Earth Day 2016, New York Governor Andrew Cuomo had “denied the 401 Water Quality Certification for the proposed Constitution Pipeline, permanently blocking this 124-mile pipeline from construction...The pipeline was to connect the fracking fields of Susquehanna County, Pennsylvania with planned natural gas export infrastructure beginning in Schoharie, New York. As proposed, the Constitution Pipeline would have carved a 125-foot wide scar along the western slope of the Catskills, plowing through 277 stream crossings, clear-cutting more than 700,000 trees and destroying more than 90 acres of wetlands.”
Again, sound familiar to what’s going on here in Virginia? So why did Governor Andrew Cuomo use his full authority under Section 401 of the Clean Water Act, yet Governor Ralph Northam isn’t doing so? By the way, the authoritative Congressional Research Service wrote in July 2015 that “Section 401 provides states with two distinct powers: one, the power indirectly to deny federal permits or licenses by withholding certification; and two, the power to impose conditions upon federal permits by placing limitations on certification.” So why hasn’t Virginia taken advantage of these powers?
*Another example comes from New Jersey, where in late March 2018, “New Jersey’s attorney general on Friday asked a U.S. District Court in the state to reject a request by PennEast Pipeline Co to condemn state property interests in preserved land for its proposed natural gas pipeline.” This $1 billion pipeline would “deliver gas from the Marcellus shale formation in Pennsylvania to customers in Pennsylvania and New Jersey.” In challenging PennEast, “The state said in its court filing that PennEast’s condemnation actions should be dismissed because the court lacks jurisdiction over New Jersey.”
Note that NJ Attorney General Gurbir Grewal’s 46-page motion in U.S. District Court came after “federal regulators issued a long-awaited approval for the pipeline” in late February. Similar to Virginia, FERC “granted PennEast the power of eminent domain, meaning it could access or obtain parcels from about 180 landowners in both states who have denied the company the ability to survey and build on their land.”
Again, why can’t Virginia do something like this?
*Finally, just to demonstrate that states do, indeed, have extensive powers under Section 401 of the Clean Water Act to halt environmentally destructive pipeline projects, check out this April 13, 2018 Oil & Gas Journal article, which reports that the Natural Gas Council is so upset about this situation that it’s trying to get the Trump administration to intervene on their behalf.
Presidents of the four national oil and gas trade associations that comprise the Natural Gas Council jointly asked the Trump administration to address problems with the implementation of Clean Water Act Section 401, which they said some states are using to stop interstate pipeline construction.
“Recent implementation of Section 401 has created much confusion and frustration and has resulted in significant delays to infrastructure projects. Moreover, some states are improperly using Section 401 to hijack the permitting process for pipelines that transport natural gas in interstate commerce,” the letter said.
Translation: waaaaaaahhhhh, they’re interfering with our destruction of the planet for profit! Help Trump/Pruitt/Zinke/etc., help!
So for anyone (e.g., Gov. Northam) who claims that states are helpless in the face of the federal government when it comes to protecting their streams, rivers and water supplies, clearly the courts don’t agree, nor does the Natural Gas Council (which WANTS states to be helpless and is frustrated that they aren’t!).
Which yet again raises the question as to why Virginia isn’t doing whatever it can in the courts to push back against what Sen. Tim Kaine called FERC’s “most unusual” 2-1 approvals of the Mountain Valley and Atlantic Coast pipelines. As Sen. Kaine wrote, “The Commission approved the MVP and ACP on 2-1 votes when two of the five commissioner slots were vacant.” Kaine added that the pipelines were approved under “very suspicious circumstances,” and that “When somebody puts something out at 7 o’clock Friday night, they’re trying to hide it…That means they’re ashamed of their decision. Why would they be ashamed of it?…Clearly, they were trying to rush it without a full complement on the team.”
These are great questions and comments by Sen. Kaine, and ones that should receive clear, convincing and public responses ASAP. Again, it would be great if AG Mark Herring – and also Gov. Ralph Northam – would be pressing hard for those answers, or even better to assert Virginia’s full authority under Section 401 of the Clean Water Act. Instead, their inaction and silence to date speak volumes…