by Jon Sokolow
It’s only a matter of days before the November 6 midterm elections and Democrats and progressives are focused, as we should be, on taking back the House of Representatives and, perhaps, the Senate. Although the phrase has been overused for decades, this probably is “the most important election of our lifetime.” That is until 2019. Or 2020. Or 2021.
So it is more than a little puzzling that Virginia Governor Ralph Northam chose October 2018 to threaten to eliminate his own Advisory Council on Environmental Justice. In fact, Northam’s threat may be a textbook example of how to divide the progressive coalition that in 2017 elected 15 new Democrats to the General Assembly, together with the three statewide offices. Not surprising, perhaps, in a so called ‘Commonwealth” where it is uncommon wealth – that held by Dominion Energy – that is protected by bi-partisan consensus.
On October 31, 2017, then Governor Terry McAuliffe issued Executive Order 73 establishing the Governor’s Advisory Council on Environmental Justice. The task of the Advisory Council was “improving the environment and public health in communities disproportionately burdened by environmental pollution and risks” and to give “advice and recommendations to the Executive Branch” geared towards “integrating environmental justice considerations throughout the Commonwealth’s programs, regulations, policies, and procedures.”
EO 73 noted that “there currently is no consistency” in how Virginia approaches such environmental justice considerations and thus the Advisory Council was to enable “a consistent, action-oriented approach to incorporating environmental justice into decision-making.”
The new Advisory Council took seriously its “action oriented” charge. It created a subcommittee on the $11 billion investment in fracked methane contemplated for the Mountain Valley and Atlantic Coast Pipelines. In May 2018, the subcommittee provided an extensive report to the full council on environmental justice considerations as they relate to the pipelines. That meeting took place in Buckingham, where Dominion Energy plans to build a compressor station for the Atlantic Coast Pipeline in the heart of an historic predominantly African American community known as Union Hill. The meeting included both a tour of the community and a public comment period at which Union Hill residents made clear their opposition to the pipeline and the compressor station.
The Advisory Council produced a detailed 15-page account of its meeting in Buckingham, focusing on the impact that the pipelines would have on Virginia’s water, cultural resources, air emissions and public health.
That’s when the stuff hit the fan.
According to many observers in and out of State agencies, after the May pipeline meeting, the Northam administration worked behind the scenes to delay or derail the Council’s work.
The administration’s efforts were a complete failure.
On August 16, the Council issued a thorough, forceful, heavily researched and damning set of recommendations on the pipelines to the Governor. This “first formal set of environmental justice concerns to the Executive Branch” minced no words. The Council noted that Title VI of the Civil Rights Act of 1964 “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal assistance.” It asserted that Union Hill was an environmental justice community and that “many of Buckingham’s residents, because of race or color, have been the historical recipients of unequal treatment, for which the…Executive Order was signed to serve as a remedy.”
Northam responded to the Council’s August 16 report by pretending it did not happen. His spokesperson was quoted as saying the report was “only a draft” and “not final” until it was voted on at the next Council meeting. That statement was contradicted by the fact that the August 16 letter was not even on the agenda for the Council’s next meeting.
To put the matter to rest, however, on August 28 the Council voted unanimously to reaffirm – word for word – its August 16 report and recommendations. The final report is on the Council’s website. It is dated August 16.
Dominion Energy promptly denounced the Council’s report in a statement to the Washington Post.
Having failed to derail the Council report, Northam tried a different tactic. He simply ignored his own Advisory Council.
For months.
Then on October 11, the Council held a public meeting in Richmond which many observed both in person and on the phone. DEQ sent its Chief Deputy Director, Chris Bast.
And there was another surprise guest. Senior Assistant Attorney General Paul Kugelman.
According to those who observed the meeting, Kugelman was there to deliver a not so veiled threat to the Council.
The Council, he said, legally did not exist.
Or it was about to not exist.
The reason for this stunning news, according to Kugelman, was that state law says that an advisory council ceases to exist either at the end of the term of the Governor who created it or one year after it was created. That would mean the Advisory Council on Environmental Justice ceased to exist in January 2018, when Ralph Northam took office, or on October 31, 2018, the one-year anniversary of its creation by Terry McAuliffe.
Many who attended the meeting smelled a pipeline rat. If Kugelman was right, then why had no one said anything earlier?
Why was the Council being told – at its very first meeting after issuing its report on the pipelines – that its very existence was in question?
Why indeed?
And who sent Kugelman to deliver that message? And why?
Then someone asked a very simple question: could Northam simply reissue the Executive Order and thus eliminate the problem? Kugelman acknowledged that Northam could do exactly that.
In fact, Northam could have reissued the Executive Order on the day he took office in January 2018.
But Northam didn’t. And he hasn’t.
Several days after the Council’s October meeting, Northam’s Secretary of Natural Resources Matt Strickler issued the administration’s formal “response” to the Council’s pipeline recommendations. Strickler’s one-page letter all but ignored the Council’s findings, leading the Virginia State Conference of the NAACP to say that it was “troubled” by Strickler’s “inadequate” and “summary dismissal of the serious, pressing and legitimate issues raised by the Governor’s own Advisory Council.” The NAACP added:
“Thousands of people who live along the route of the MVP and ACP are being negatively impacted daily by construction issues that already have done damage to Virginia’s precious water and natural resources. Federal court decisions have resulted in multiple permits having been vacated, exposing a rushed and slipshod regulatory process. More is required of our state leadership and we believe that state and federal law allow Virginia to both revoke the previous certifications granted for these pipelines under Section 401 of the Clean Water Act and to deny an air permit for the Buckingham compressor station.”
Ralph Northam and those around him tried to derail the Governor’s own Advisory Council on Environmental Justice.
Then they pretended the Council had not spoken.
Then they ignored it.
And when Northam and Strickler could no longer ignore their own Advisory Council, they threatened to destroy it.
An astute observer of the Advisory Council’s work recently told this author that it is hard to believe that a Southern Democratic Governor would go so far as to eliminate an advisory council on social justice in retaliation for having offended his corporate campaign contributors. The optics, as they say, would not be good.
Perhaps that is correct.
But there are many ways Northam could gut the Council. Northam could let it be known that he doesn’t want to hear any more about pipelines. He could pack the Council with members more willing to tow the Dominion Energy party line. And he could get rid of those who refuse to stay silent.
The problem with changing the composition of the current 15 members of the Council is that they were told explicitly and on the record in December 2017 that “all appointed members are being asked to serve for the first two years to ensure continuity while the Council is getting established.”
Whatever Northam does do, this much seems clear: he wishes the Council would just go away – or at least shut up about pipelines. He could prove that statement wrong by issuing a new Executive Order and reappointing the current members. And he could do so today, in the name of “party unity,” right before “the most important election of our lifetime.”
Either way, the movement to stop the Mountain Valley and Atlantic Coast Pipelines is not going away. In fact, it grows broader and bolder with each passing day. Also not going away is the Fourth Circuit Court of Appeals, which has become “an absolute killing field for federal permits” for the pipelines. These pipelines can and should be stopped. When all is said and done, an accounting will be made of who stood up for environmental justice, who stood against and who stayed silent.
Which brings us to 2021, which no doubt will be another of those “most important elections of our lifetime” moments. In 2021, Virginia will, among other things, elect a new Governor and a whole new House of Delegates. Attorney General Mark Herring who presumably dispatched his Senior Assistant Attorney General to tell the Advisory Council on Environmental Justice that it did not exist, is widely assumed to want to run for Governor. So is Lieutenant Governor Justin Fairfax, who famously told voters in 2017 that he was against the pipelines, but who has steadfastly refused to utter a word on pipelines since he was elected.
Justin Fairfax’s silence is particularly puzzling. He met with a pipeline delegation in September that included residents of Union Hill who begged him to speak out and honor his campaign promise. They asked him how it could be that Ralph Northam spoke out against a compressor station that would have ruined the view from George Washington’s Mount Vernon plantation, (Dominion has since cancelled plans for that compressor station) but that Northam and Fairfax have done nothing to protect the health and wellbeing of the good folks of Union Hill. Fairfax listened politely – but has done nothing since. Meanwhile, the Virginia Air Pollution Control Board gets ready to meet on November 8-9 in a public hearing that will decide the fate of that historic community.
The United Nations Intergovernmental Panel on Climate Change – the world’s scientific community – just issued a devastating report that says we are only twelve years away from irreversible climate catastrophe. The IPCC report said that, among other urgent actions, we need to reduce methane – which is what would be extracted by fracking to fuel the Atlantic Coast and Mountain Valley Pipelines – by 35% from 2010 levels. If we fail to act, our planet is in deep trouble. And failure by any leader to take bold action in response to the global emergency highlighted by the IPCC report should be an automatic disqualifier for future political office. That includes supporting pipelines in Virginia that directly contravene the urgent methane goals set forth in the United Nations report.
In 2021, voters will ask candidates what did you do in the fight for environmental justice in 2018? What did you do when Ralph Northam ignored his own Advisory Council and then threatened to eliminate it? What did you do in response to the United Nations report? Not in words, but in deeds.
Which side were you on?
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