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Anatomy of a Farce: How Va. AG Mark Herring & the State Water Control Board Caved to Corporate Criminal Mountain Valley Pipeline & Then Tried (but Failed) to Hide the Truth

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by Jon Sokolow 

On March 2, I published an article in Blue Virginia and on Medium entitled: “Threatened by Corporate Criminal Mountain Valley Pipeline, Virginia Attorney General Mark Herring and State Water Control Board Fold Like Cheap Suits.”  Therein, I discussed the fact that the State Water Control Board, faced with a water quality certification that plainly gave them authority to stop the destruction being wrought by MVP, held a closed door meeting at which they concluded, supposedly based on the advice of Mark Herring’s office, that they did not have that authority after all.

On March 7, the Roanoke Times ran an editorial in which they noted, “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.”

That’s right. I (and they) did.

After reviewing the troubling timeline – which including the Virginia Department of Environmental Quality (DEQ) waiting months to schedule a revocation hearing that the board had demanded and then suddenly scheduling a meeting to “discuss” revocation two days after receiving a threatening letter from MVP – the Roanoke Times noted a series of questions that our article “nicely frames up”:

“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?”

“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?”

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?”

And the Roanoke Times added this:

“Those seem good questions — which deserve good answers. Or even any answer.”

A few days later, Roanoke Times reporter Laurence Hammack attempted to get some answers to those questions.  In a March 9 article, Hammack’s reporting revealed what many have suspected:  Virginia is being lied to. Repeatedly.  And demonstrably so.

Let us review.

Hammack correctly noted that the Board emerged from a closed-door meeting on March 1 to announce that it did not have the authority to revoke MVP’s Section 401 certification, even though the certification says that the Board has exactly that authority.  As Hammack reported:

“Board members said they were relying on advice from an assistant attorney general. But no legal explanation of why the board was powerless to stop construction — or even try to — was provided to the public before the board’s unanimous vote.”

So, naturally, Hammack went to DEQ, which provides staff support to the Board, to ask them what the basis for the board’s newfound lack of authority came from.  The response?  “DEQ spokeswoman Ann Regn referred questions to the attorney general’s office.”

So, naturally, Hammack sought a comment from the Attorney General’s office.  The result?

“Michael Kelly, a spokesman for Attorney General Mark Herring, in turn referred questions about the board’s decision to its members. ‘We cannot discuss attorney client/privileged legal advice,’ Kelly said in an email.”

So naturally, Hammack approached the Water Board members themselves. 

And that’s when this pathetic spectacle went from tragedy to farce.

One Board member, Timothy Hayes, reportedly told Hammack that the board could not revoke the Section 401 certification “because the state’s certification alone did not authorize Mountain Valley to do anything” and therefore “the board could not revoke it.”

Let’s try that again.

After enormous public acrimony, protests and even civil disobedience all designed to stop Virginia from allowing construction of the Mountain Valley Pipeline, Virginia issued a certification, which is required by federal law (Section 401 of the Clean Water Act) before construction of the pipeline could commence.  But Virginia could not revoke the certification, according to Hayes, because the legally required certification “did not authorize Mountain Valley Pipeline to do anything.”

Hayes’ preposterous reasoning was not the end of the story. Asked by Hammack why the 401 certification itself stated it could be revoked if it could not be, Hayes said “that was a “boilerplate” phrase that slipped into the certification during a two-day meeting in December 2017 that led to the board’s certification of the pipeline.”  As Hammack noted, that meeting “was marked by confusion and some disorder by emotional spectators as DEQ officials mulled over how to best regulate the largest natural gas pipeline ever proposed for Southwest Virginia.”

But there is a problem with Hayes’ clever “slipped into the certification” claim.  It’s not true.

The meeting that Hayes referred to occurred on December 7, 2017, a date that surely will live in infamy if this pipeline is ever completed.  A month earlier, however, on November 13, 2017 to be precise, DEQ posted its proposed “Meeting Agenda” for the December meeting on its website, where it still resides (as of this writing).  The agenda document, which included the draft 401 certification, was 179 pages long.  The language that Hayes claimed was “slipped in” at the last minute in December appears at page 54 of that November 13 document.

The revocation language – included in draft condition 14 – is as clear as a mountain stream: “This Certification is subject to revocation for failure to comply with the above conditions and after a proper hearing.”

On December 7, 2017, the Board approved the draft 401 certification that had been posted in November.  Several changes were made to that draft, including adding a condition 16, but the revocation language was not one of them.  It remained exactly as it had appeared in condition 14 on the November draft.

In fact, that identical revocation language was in the original draft certification that DEQ sent out for public comment many months before the December 7 meeting. At that point in the process, it was condition 13. That is all a matter of public record.

Given these facts, it is a little more than puzzling that Mr. Hayes now “misremembers” something that did not occur.  He was present at the December 7 meeting.

In fact, Hayes was the one who moved that the board adopt the 401 certification.

More recently, Jennifer Lewis, the Democratic candidate for the House of Delegates from the 20th District and a leader in the fight for environmental justice in Virginia, cornered Mark Herring at a public event and tried to get some answers on the Mountain Valley Pipeline and the Atlantic Coast Pipeline.  Lewis reported that Herring said there was nothing he could do because the Water Board had already acted.  Lewis “told him how impacted landowners and communities needed him to do the right thing. Herring refused to be honest with me and was quickly whisked away by his staffers.”

So the public record is filled with unsupported claims that the board did not have the authority to revoke the 401 certification for the Mountain Valley Pipeline.  The claims are absurd on their face.  And the scant reasoning offered to date is equally absurd.

But none of the state officials involved are willing to talk about this.

Publicly that is.

Because we can now reveal – based on multiple sources – exactly what was discussed behind those closed doors at the March 1 water board hearing.  And the four hours of discussion between DEQ staff, board members and a junior attorney from the office of Attorney General Mark Herring provide as clear an explanation as any of precisely why no one is willing to explain their rational in public.

Because the truth is scandalous. Scandalous as the damage being wrought by the Mountain Valley Pipeline in southwest Virginia.

In fact, the so called “legal reasoning” that led to the folding of all of those cheap suits is, in a word, farcical.

And it’s all hiding in plain sight – in Section 401 of the Clean Water Act.

Stay tuned for part two of this series.