by Jon Sokolow
In December 2018, Virginia’s State Water Control Board voted 4-3 to begin the process of revoking a permit it had issued one year earlier to allow construction in Virginia of the 300-mile, $4.6 billion Mountain Valley Pipeline (MVP).
The surprising vote came on a motion by new Board member James Lofton, who had been put on the Board by Governor Ralph Northam to replace Roberta Kellam. Weeks earlier, Northam had fired Kellam after she raised serious questions about the damage being wrought by MVP to the water and land resources of southwest Virginia, which has been documented in photos, videos and drone footage by concerned citizens and landowners.
Virginia’s Department of Environmental Quality (DEQ) simply ignored the Board’s directive – until it received a stunning letter from MVP on February 12. In that letter, MVP not only objected to the Board commencing a revocation process, but argued that the Board had no authority to do so (“Unilateral action by the board at this time cannot amend or invalidate that license or otherwise block construction”), and that MVP would sue the Board if it went any farther. In a stunning demonstration of corporate arrogance, MVP told the Board that if Virginia actually revoked the state permit, MVP would simply ignore the action and continue construction anyway as long as it had a federal permit.
Never mind the fact that MVP is currently under criminal investigation by the U.S. Attorney’s Office in Roanoke for illegal activities associated with the pipeline project.
Never mind that citizens have documented more than 500 violations of Virginia’s water quality standards and of the permit conditions that allowed construction in the first place.
Never mind that, as a broad group of attorneys, including the Southern Environmental Law Center and the Chesapeake Bay Foundation, have noted, the permit that Virginia issued in 2017 included a host of conditions related to Virginia’s Stormwater Management Act, Erosion and Sediment Control Law and the Virginia Water Protection Permit Program Regulations — and that permit expressly says that “[t]his Certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”
And never mind that Virginia Attorney General Mark Herring has sued MVP, alleging that the company has committed more than 300 violations of Virginia law during construction.
Never mind all that.
Because on February 14, two days after being threatened by MVP and following two months of silence, DEQ scheduled a meeting to “discuss” the revocation process (see videos, below).
That was the first signal that Virginia was about to cave.
On March 1, the Board held its meeting – and the fruits of MVP’s outrageous threats – and Ralph Northam’s purge of the Water Board – became clear.
Attorney General Mark Herring, represented by a junior attorney from his office, told the Board that MVP was right and that the Board had no authority to revoke MVP’s permit. The junior attorney from AG Herring’s office gave this “advice” even though the permit itself, which was approved, or more likely actually written by Herring’s office, said exactly the opposite.
Faced with this new advice from Mark Herring’s office, James Lofton and his fellow Board members folded like so many cheap suits.
This pathetic process of surrendering to a corporate criminal played out over several hours. The Board convened for its meeting at 10 a.m. and promptly retreated to a “closed meeting” that included on the Attorney General’s office, Board members and DEQ staff. Hundreds of citizens who showed up to voice their concerns were excluded from the meeting and given no opportunity to be heard.
Four hours later, the Board emerged.
But rather than engaging in an open discussion of the issues, Mr. Lofton – who, it bears repeating, was put on the Board by Ralph Northam to replace Roberta Kellum – signaled the surrender by saying he had concluded the Board had no authority to act. The Board quickly voted to terminate the revocation process, as MVP had demanded, and scurried out of the room.
Activists shouted “shame” and, in particular, “shame on you Jim Lofton.” This prompted Mr. Lofton to come over to the activists and engage in a lengthy discussion as to why he had caved to MVP’s pressure. The extraordinary discussion was caught on video. It included Delegate Chris Hurst asking Mr. Lofton whether he agreed with DEQ Director David Paylor that landowners who were documenting violations were “dishonest,” a question Lofton refused to answer. Instead, Lofton stuck to his talking point that the Board had no authority to revoke the permit, citing Section 401(a)(5) of the Clean Water Act.
Two things must be said about the claim, apparently now endorsed by Mark Herring, that the Board has no authority to enforce the conditions of its own permit, which expressly reserves the right to commence revocation proceedings in appropriate circumstances.
First the claim that Virginia has the power to issue a permit but no power to revoke it, is not only patently absurd, but contradicted by the very provisions of federal law upon which the claim is based. Clean Water Act Section 401(a)(5), although it states conditions under which the federal government can revoke a federal permit, is absolutely silent on a state’s authority to revoke a state-issued permit.
Nor does that section or any other section of the Clean Water Act even imply that a state’s authority to revoke is restricted.
To the contrary, the Clean Water Act grants states the authority to issue and enforce both its state water quality standards and the conditions of permits issued by the state. That is precisely what Virginia was poised to do – enforce conditions of a permit which included a condition that the permit could be revoked if other conditions were violated.
Second, and this gets to the heart of the injustice that Mark Herring and the Board have just committed, the argument about the Board’s authority to revoke is a dodge, a diversion intended to hide the fact – which is not in dispute – that the Board and Virginia have the clear authority to issue a stop work order now to prevent further violation sof Virginia law by MVP. As the letter from the attorneys for the pipeline opponents makes clear:
“Virginia law, Va. Code Ann. § 62.1-44.15(8b), grants the Board specific legal authority to issue emergency special orders to stop ongoing violations if a project “is grossly affecting or presents an imminent and substantial danger to (i) the public health, safety or welfare, or the health of animals, fish or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural or other reasonable uses.” It may issue emergency special orders “without advance notice or hearing” . . . “directing the owner to cease such pollution or discharge immediately.”…
Further, Virginia law, Va. Code Ann. § 62.1-44.23, also grants the Board specific legal authority to enforce compliance with state law, regulations, and the conditions of its permits by initiating a proceeding in “any appropriate court.” In that proceeding, the Board can seek a preliminary injunction to stop ongoing violations while the case proceeds. Here, the Board has already initiated an enforcement proceeding against MVP alleging as many as 300 violations of state law.”
So regardless of whether the state can outright revoke MVP’s permit, it is beyond doubt that Virginia has the power to issue a stop work order now. And the ball is squarely in Mark Herring’s court.
Still, a host of questions remain:
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. Were they lying then – or are they lying now? Or was it just bad lawyering?
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?
Why did it take four hours for the Board to figure out that it had no authority when it met behind closed doors on March 1 to discuss the matter? What else were they told? Were Board members told they might be fired, as had happened to Roberta Kellam, if they did not cave? Were they told they might be sued by MVP and would have to cover the legal expenses themselves?
And most importantly, 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 over 300 documented violations, and there is a record of ongoing violations, then when would it ever apply?
February 2019 was a month in which Virginia became a national embarrassment, with the Governor and Attorney General admitting to having dressed in blackface when they were younger, and with the Lieutenant Governor having been accused of two sexual assaults.
Now, March 2019 has begun with Virginia caving in to a corporate criminal.
Is anyone in Virginia ready, willing and able to rescue this Commonwealth from becoming a national joke?