Pro Publica
August 05, 2022
Screengrab.
From his Summers County, West Virginia, farmhouse, Mark Jarrell can see the Greenbrier River and, beyond it, the ridge that marks the Virginia border. Jarrell moved here nearly 20 years ago for peace and quiet. But the last few years have been anything but serene, as he and his neighbors have fought against the construction of a huge natural gas pipeline.
Jarrell and many others along the path of the partially finished Mountain Valley Pipeline through West Virginia and Virginia fear that it may contaminate rural streams and cause erosion or even landslides. By filing lawsuits over the potential impacts on water, endangered species and public forests, they have exposed flaws in the project’s permit applications and pushed its completion well beyond the original target of 2018. The delays have helped balloon the pipeline’s cost from the original estimate of $3.5 billion to $6.6 billion.
But now, in the name of combating climate change, the administration of President Joe Biden and the Democratic leadership in Congress are poised to vanquish Jarrell and other pipeline opponents. For months, the nation has wondered what price Democratic West Virginia Sen. Joe Manchin would extract to allow a major climate change bill. Part of that price turns out to be clearing the way for the Mountain Valley Pipeline.
“It’s a hard pill to swallow,” said Jarrell, a former golf course manager who has devoted much of his retirement to writing protest letters, filing complaints with regulatory agencies and attending public hearings about the pipeline. “We’re once again a sacrifice zone.”
The White House and congressional leaders have agreed to step in and ensure final approval of all permits that the Mountain Valley Pipeline needs, according to a summary released by Manchin’s office Monday evening. The agreement, which would require separate legislation, would also strip jurisdiction over any further legal challenges to those permits from a federal appeals court that has repeatedly ruled that the project violated the law.
The provisions, according to the summary, will “require the relevant agencies to take all necessary actions to permit the construction and operation of the Mountain Valley Pipeline” and would shift jurisdiction “over any further litigation” to a different court, the D.C. Circuit Court of Appeals.
In essence, the Democratic leadership accepted a 303-mile, two-state pipeline fostering continued use of fossil fuels in exchange for cleaner energy and reduced greenhouse emissions nationwide. Manchin has been pushing publicly for the pipeline to be completed, arguing it would move much needed energy supplies to market, promote the growth of West Virginia’s natural gas industry and create well-paid construction jobs.
“This is something the United States should be able to do without getting bogged down in litigation after litigation after litigation,” Manchin told reporters last week. He did not respond to questions from Mountain State Spotlight and ProPublica, including about the reaction of residents along the pipeline route.
ProPublica and Mountain State Spotlight have been reporting for years on how a federal appeals court has repeatedly halted the pipeline’s construction because of permitting flaws and how government agencies have responded by easing rules to aid the developer.
The climate change legislation, for which Manchin’s vote is considered vital, includes hundreds of millions of dollars for everything from ramping up wind and solar power to encouraging consumers to buy clean vehicles or cleaner heat pumps. Leading climate scientists call it transformative. The Sierra Club called on Congress to pass it immediately. Even the West Virginia Environmental Council urged its members to contact Manchin to thank him.
“Senator Manchin needs to know his constituents support his vote!” the council said in an email blast. “Call today to let him know what climate investments for West Virginia means to you!”
But even some residents along the pipeline route who are avidly in favor of action against climate change say they feel like poker chips in a negotiation they weren’t at the table for. And they are anything but happy with Manchin. “He could do so much more for Appalachia, a lot more than he is, but he’s chosen to only listen to industries,” farmer Maury Johnson said.
It’s not clear exactly when the Mountain Valley Pipeline became a focal point of the efforts to win Manchin’s vote on the climate change legislation. Reports circulated in mid-July that the White House was considering giving in to some Manchin demands focused on fossil fuel industries. That prompted some environmental groups to urge Biden to take the opposite route, blocking the pipeline and other pro-industry measures.
Pipeline spokesperson Natalie Cox said in an email that it “is being recognized as a critical infrastructure project” and that developers remain “committed to working diligently with federal and state regulators to secure the necessary permits to finish construction.” Mountain Valley Pipeline LLC, the developer, is a joint venture of Equitrans Midstream Corp. and several other energy companies.
The company “has been, and remains, committed to full adherence” with state and federal regulations,” Cox added. “We take our responsibilities very seriously and have agreed to unprecedented levels of scrutiny and oversight.”
The White House and Senate Democratic Leader Chuck Schumer’s office did not respond to requests for comment.
Mountain Valley Pipeline is one of numerous pipelines proposed across the region, reflecting an effort to exploit advances in natural gas drilling technologies. Many West Virginia business and political leaders, including Manchin, hope that natural gas will create jobs and revenue, offsetting the decline of the coal industry.
To protect the environment, massive pipeline projects must obtain a variety of permits before being built. Developers and regulators are supposed to study alternatives, articulate a clear need for the project and outline steps to minimize damage to the environment.
In Mountain Valley Pipeline’s case, citizen groups have successfully challenged several of these approvals before the 4th U.S. Circuit Court of Appeals. In one widely publicized ruling involving a different pipeline, the panel alluded to Dr. Seuss’ “The Lorax,” saying that the U.S. Forest Service had failed to “speak for the trees” in approving the project. The decision was overturned by the U.S. Supreme Court, but not before the project was canceled.
The 4th Circuit has ruled against the Mountain Valley Pipeline time and again, saying developers and permitting agencies skirted regulations aimed at protecting water quality, public lands and endangered species. In the past four years, the court has found that three federal agencies — the U.S. Forest Service, the U.S. Army Corps of Engineers and the Interior Department’s Bureau of Land Management — illegally approved various aspects of the project.
While those agencies tweaked the rules, what Manchin’s new deal would do is change the referee. In March, Manchin told the Bluefield Daily Telegraph that the 4th Circuit “has been unmerciful on allowing any progress” by Mountain Valley Pipeline.
Then, in May, lawyers for the pipeline petitioned the 4th Circuit to assign a lawsuit by environmental advocates to a new three-judge panel, instead of having it heard by judges who had previously considered related pipeline cases. Among other things, the attorneys cited a Wall Street Journal editorial, published a week earlier, declaring that the pipeline had “come under a relentless siege by green groups and activists in judicial robes.”
Lawyers for the environmental groups responded in a court filing that Mountain Valley Pipeline LLC was just “dissatisfied that it has not prevailed” more often and was unfairly lobbing a charge that the legal process was rigged. The 4th Circuit rejected the company’s request.
It is unclear whether this pending case, which challenges a water pollution permit issued by West Virginia regulators, would be transferred if the Manchin legislation becomes law.
Congress has intervened in jurisdiction over pipeline cases before. In 2005, it diverted legal challenges to decisions on pipeline permits from federal district courts to the appeals court circuit where the projects are located. The move was part of a plan encouraged by then-Vice President Dick Cheney’s secretive energy task force to speed up project approvals. (Under the Constitution, Congress can determine the jurisdiction of all federal courts except the U.S. Supreme Court.)
Besides the pipeline, Manchin has cited other reasons for his change of heart on the climate change bill. He has emphasized that the bill would reduce inflation and pay down the national debt.
Approval for the pipeline may not be a done deal. Both senators from Virginia, where the pipeline is also a hot political issue, are signaling that they don’t feel bound by Manchin’s agreement with the leadership. Manchin’s own announcement said that Democratic leaders have “committed to advancing” the pipeline legislation — not that the bill would pass. Regional and national environmental groups are walking a fine line. They support the climate change legislation while opposing weakening the permit process.
The pipeline’s neighbors say they’ll keep fighting, but they recognize that the odds are against them. “You just feel like you’re not an equal citizen when you’re dealing with Mountain Valley Pipeline,” Jarrell said.
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