The quest for approval of the Mountain Valley Pipeline has proved to be so herky-jerky over the past seven years that even diligent watchdogs need a spreadsheet to stay on top of each layered zig and zag.
One such dogged individual is David Sligh, conservation director for the nonprofit Wild Virginia. The Charlottesville-based attorney and University of Virginia graduate describes himself as a policy nerd who has worked for 35 years to make the promises of the country’s environmental laws real. That tenure includes a stint as a senior environmental engineer for the Virginia Department of Environmental Quality.
Sligh will be one of several speakers at a pipeline protest scheduled from 1-4 p.m. on Dec. 11 at Byrd Park in Richmond. The Rev. William J. Barber II, chair of the Poor People’s Campaign, will deliver the keynote address at the event organized by the Violation Vigil Project.
It’s intentionally set to take place three days before the Virginia Water Control Board meets — and likely votes — to grant or deny a Clean Water Act permit for the natural gas pipeline.
In addition to Wild Virginia, the vigil is a collaboration of Sierra Club Virginia, Appalachian Voices, Chesapeake Climate Action Network, Protect Our Water Heritage Rights, and numerous other conservation and social justice organizations.
The limited liability company trying to complete the pipeline is a joint venture of EQM Midstream Partners, NextEra Capital Holdings, Con Edison Transmission, WGL Midstream and RGC Midstream. Currently, it’s way over budget and years behind schedule.
Plus, the owners have paid more than $2 million in penalties for 300-plus water quality violations in Virginia and West Virginia, according to a September 2020 report from the Natural Resources Defense Council.
If completed, the pipeline is designed to carry a glut of hydraulically fractured natural gas from West Virginia to a market in North Carolina that close observers say is nonexistent. It is actually two projects. The mainline is 303 miles and the 72-mile Southgate extension would reach into North Carolina.
That extension — and perhaps the entire pipeline — was dealt a significant setback last Friday when the Virginia Air Pollution Control Board voted resoundingly to deny a permit for the proposed Lambert compressor station in Pittsylvania County.
“This is a huge blow to the extension project,” Sligh said about the air board’s 6-1 rejection. “It doesn’t directly affect the mainline, but may affect the thinking about cost and benefits of carrying the gas from West Virginia if it can’t get to North Carolina.”
Initially, the entire pipeline route crossed close to 1,000 rivers, streams and wetlands. Construction executed thus far has already compromised hundreds of them.
Sligh is intimately familiar with the terrain the pipeline carves through in Virginia’s New River and Roanoke valleys. His family roots in the Roanoke region stretch back some eight generations.
“That’s home range for me,” he said. “Some of these water bodies I have loved all of my life.”
He’s deeply aware that pipeline construction has already compromised the delicate karst topography, formed by limestone and other soluble rocks. The 107-mile stretch of the pipeline’s path in Virginia is characterized by steep slopes and underground sinkholes, caves, aquifers, and streams.
Sligh finds it remarkable that so many Virginians are equally passionate about those landscapes.
“In my long involvement in these fronts, I’ve never seen so many people who have stayed engaged with an issue for so long,” he said. “Now it’s time for the water control board to recognize they didn’t have the full story at first. They need to incorporate that new information into their next decision.”
In an interview with the Energy News Network, Sligh explains why protesters have stuck with their effort to shut down the pipeline. The following transcript was lightly edited for clarity and length.
Q: First, why is this event part of an overall movement named the Violation Vigil Project?
A: When the states of Virginia and West Virginia made a decision in 2017 that said construction in some places could begin and water standards would be met, we provided evidence and strong proof that wouldn’t be the case. And, lo and behold, there has been violation after violation.
People have said they felt a need to show up to bear witness and show the magnitude of what’s at stake. If we get 200 or 300 people representing all those involved to show up, that’s an eloquent statement about the magnitude and seriousness of this.
It’s so important to show the human part. When I’ve talked to people with damaged land and water on their properties, you can see the pain on their faces and hear it in their voices. That has to be acknowledged.
Q: You laughingly refer to yourself as a Clean Water Act nerd, not an organizer. Yet, you’ve been invited to speak on Dec. 11. What will your basic message be?
A: I’m going to get several minutes to pack in a lot of information. The gist of it is that we just passed the 49th anniversary of the Clean Water Act. That 1972 law is about maintaining and restoring the integrity of all of our waters.
There couldn’t be a more stark example than this pipeline on how we have failed to do that. We can’t fail on the promise of that act.
We’re not asking the water board or other authorities to rule because we’re compelling speakers or because of emotions. We do believe the facts are in our favor. We’re asking for a fair accounting and a decision based on those facts.
Q: How do you respond to naysayers who tell you protests are a waste of time because the government has channels for opponents to voice their concerns?
A: Yes, people say, “Go file comments with the proper authorities.” I always point out that laws like the Clean Water Act weren’t intended to look at narrow little scientific questions. They are supposed to embody human interests. What I try to emphasize with decision-makers is that you lose sight of the values you are supposed to uphold when you look at things very narrowly.
Yes, decision-makers have to pay attention to the wording of laws and facts. But if water bodies become dangerous or are damaged, people can’t use them.
Q: The vigil date is significant because it occurs three days before the seven-member State Water Control Board meets to vote on something called a 401 Water Quality Certification permit. What would the granting of that permit allow?
A: This is a little confusing. The Virginia water board is reviewing the same part of the Clean Water Act that the U.S. Army Corps of Engineers is now reviewing. At the federal level, it’s called a 404 permit.
Granting of the state permit would allow the pipeline builders to dig and blast through 236 more streams and wetlands in Virginia. The board has to decide if that can be done in compliance with the state’s clean water standards.
Action at the state level in Virginia and West Virginia are prerequisites to the Army Corps making its final decision. So in essence, per wording of the Clean Water Act, states have veto power over whatever decision the Army Corps makes. In Virginia, the water board makes the final decision. In West Virginia, it’s up to the Department of Environmental Protection.
(Editor’s note: Virginia’s official deadline is Dec. 31 and West Virginia’s is Dec. 30. The Army Corps is likely to issue a ruling in January.)
Q: The Mountain Valley Pipeline was originally outlined in 2014. Wild Virginia and other organizations have been fighting it since 2015. Can you explain why these water permits are being considered so far along in the process?
A: This is a symptom of what happens when the agencies responsible for looking at this thoroughly and basing their decision on facts don’t do so.
Twice, the courts told the Army Corps that a nationwide permit could not be used by pipeline developers to cross waterways. We had said from the very beginning that a nationwide permit is ridiculous because this activity will have a substantial negative impact.
Pipeline developers had made generalizations about what construction methods would be OK for the whole country. It’s not even credible to believe that anybody could come up with rules for the whole country. This pipeline would traverse some of the most sensitive places in the whole country. The streams are some of the greatest places for aquatic biodiversity and rare species in the world.
After two rejections, that’s when MVP decided not to pursue that option and instead tried to get an individual permit, the federal one known as a 404.
Q: Let’s delve into that background a bit. Hasn’t the construction of natural gas pipelines always required permits at the state and federal levels? What happened here?
A: It’s important to note one other piece. Virginia went along with the idea of the nationwide permit on water body crossings the Army Corps was seeking. Again, we said that’s not appropriate and told the water board it wasn’t living up to its responsibilities.
The permit the water board is considering now has to do with water body crossings. The Department of Environmental Quality has said the board could go ahead and approve the certification. Back in December 2017, the board approved pipeline construction in what are called uplands, land without streams or wetlands.
The Army Corps only considers water body crossings with its 404 permit — it doesn’t look at uplands.
Q: So, bear with me, it seems Mountain Valley Pipeline developers opted to pursue two parallel paths in 2020 after the Virginia Department of Environmental Quality ruled that a federal permit wasn’t enough.
Path one seeks permission from the Federal Energy Regulatory Commission to bore under waterways along the route. Path two combines a federal and state approach. It seeks approval for the aforementioned 404 Clean Water Act permit from the Army Corps of Engineers and the 401 permit via the Virginia DEQ.
Which decision comes first and does one overrule the other?
A: The Federal Energy Regulatory Commission staff has made a recommendation that putting a pipeline under (some) water bodies is OK. But the commissioners haven’t taken that up yet and we don’t know when they will. FERC does not have a bigger hammer than the other authorities.
It’s absurd to have divided it up this way, allowing pipeline builders to do upland construction before a decision is made about the Clean Water Act permit. All of those decisions should have been made final before they were allowed to start construction.
Pipeline proponents believed that so much construction has been completed that it gives them leverage to overrule any challenges. The point is we have incredibly valuable resources that we can save. If we don’t, we’re allowing the destruction that has already happened to foreordain more destruction.
Q: Can you speak more about the destruction?
A: Nobody has done an analysis that would come close to answering questions in detail explaining if the digging and blasting can be done and still meet water quality standards in Virginia. History shows that MVP is not prepared, willing or able to do what the law requires.
Violations come in a number of varieties. One, when they were required to put in pollution control devices, they just didn’t do it. Two, the devices they put in failed. That meant muddy water and sediment flowed off steep slopes with shallow soils and made groundwater vulnerable.
I’ve been combing through thousands of pages in reports showing that, over and over, MVP did not install devices and did not implement what was called for in the plans.
Q: Another strange twist in the water permitting process occurred when authorities with the U.S. Environmental Protection Agency expressed concerns about the 404 permit being handled by the Army Corps. That evidently prompted the Army Corps to reopen a comment period that had closed in May of this year. Is that unusual?
A: That course of events is exactly right. Our organizations had asked for an extension of the comment period.
The Army Corps did have an online public hearing after the EPA submitted comments early in the summer or late in the fall of this year. Whether that was in response to the EPA comments or whether Corps officials thought they need additional information, I won’t speculate on that.
Essentially, the EPA recommended that the Corps not issue a federal permit. In comments, they expressed concerns about damage the pipeline would cause, saying the analysis of the project was lacking.
That’s important because while the Corps has authority, it has to carry out regulations designed by the EPA. In essence, the EPA was saying: You are not living up to the regulations we drafted.
That’s pretty significant. Our organizations had been saying that for months, but we were gratified by the EPA’s comments.
The EPA’s role seems to be advisory, but I want to note that the impacts and threats to water quality the agency cited are just as valid to the Virginia process as they are to the federal one because the state is looking at the same issues. Those deficiencies are just as serious for the water board to consider. DEQ authorities did come out with a document that purports to answer the EPA’s concerns.
Q: As I understand it, the State Water Control Board closed its public comment period on Oct. 27. But it seems the process was complicated by pandemic protocols. Will board members be able to review a full list of comments before voting?
A: The emergency order that Gov. Northam issued about the pandemic had, in effect, allowed for online hearings. But that ended in June.
That prompted our organizations to plead with the government to give some sort of order allowing for a continued online component because people didn’t want to show up in a room to give in-person testimony with COVID still being an issue. Sure, everyone could submit written comments, but it’s not the same as speaking out at a hearing. Frankly, we never got an answer.
My crazy idea was to orchestrate what we called the people’s hearing on Oc. 25. Forty people signed up to speak at our digital hearing. I’m not sure how many actually did, but we recorded all three hours of testimony, made a transcript and submitted it. Now it’s in the record.
Q: Will you and others be able to comment at the Dec. 14 meeting?
A: Usually, after hearings, the Department of Environmental Quality has a summary of comments. The public is then allowed to show up at meetings and comment on the accuracy of those comments. But the board has decided that the public won’t be able to speak on Dec. 14. They did tell us they would make comments available, but we feared they would get buried in all of the paperwork.
So we produced a summary document and gave them links to all of the original material. In both of those ways, the hearing and the summary document, we did an awful lot of what’s supposed to be the DEQ’s jobs.
Q: We’ve talked about the Virginia section. But this pipeline would begin in West Virginia and end in North Carolina. What’s the status of pipeline construction in West Virginia?
A: They have done a lot of so-called upland areas. Sometimes, pipe is in the ground covered over with soil and planted with grass and sometimes pipe is on the ground, uncovered. They have yet to do any work in national forests because we beat them on that front.
Near waterways, you’ll see pipe laid and covered over going to the edge of the stream bank, then there’s a gap, and then the pipeline is picked up on the other side of the stream.
They’ve done a lot of destruction that way. That’s what keeps me motivated, knowing how much we still have to save out there and how important each piece is.
Q: The North Carolina Department of Environmental Quality has twice rejected the water permit required for the Southgate extension. Where does that stand?
A: The judges ruling on that made it clear that North Carolina had the authority to make the decision. After that first ruling, MVP went to court and challenged it. That’s when the court told the state it needed to spell out its reasons more clearly.
So, no, they’re not allowed to work there. If they never get certification from North Carolina authorities, they can’t build the Southgate extension. Period.
Q: In November, outgoing Democratic Gov. Ralph Northam signed an order requiring state agencies to consult with Virginia Indian tribes before reaching decisions that affect land, waterways and other geographical features. If issued earlier, would such an order have made a difference to the Monacan and other Indigenous people opposing this pipeline?
A: I won’t try to say I know all the implications of the current order or what the administration had in mind. However, there’s been a lot of activity around environmental justice over the last two (Democratic) administrations, so officials have the responsibility to look at those issues under current law.
If you drop back to the Union Hill compressor station with the Atlantic Coast Pipeline, there’s no question DEQ and the air board were supposed to incorporate a range of factors, including siting issues and whether such infrastructure would have disparate impacts on certain parts of our population.
Q: Pipeline opponents in Virginia celebrated in 2020 when Dominion Energy’s Atlantic Coast Pipeline was canceled, but have long feared that the MVP route would become a sacrifice zone because it wasn’t drawing as much attention. Why continue the battle?
A: These folks are supposed to be looking out for all of us and doing their jobs properly. How people are treated while these decisions are being made matters because people want to have their say. I’m very serious about the truth being told throughout this process and that hasn’t been the pattern here.
I’m a Clean Water Act zealot. I believe in the vision those politicians gave us 49 years ago. We have these laws and we need to honestly live up to them.