Anatomy of a Farce, Part 2: How Virginia Attorney General Mark Herring and the State Water Control Board Ignored the Law to Protect Corporate Criminal Mountain Valley Pipeline

In part one of this series, we explained how in December 2017, the Virginia State Water Control Board issued a certification that allowed construction to begin on the 300 mile long, $4.6 billion Mountain Valley Pipeline. We noted that the certification said it was “subject to revocation for failure to comply with the above conditions and after a proper hearing.”

We also noted how fourteen months later, on March 1, the board went into a secret session for four hours with staff from the Department of Environmental Quality and a junior attorney from Attorney General Mark Herring’s office, then emerged to announce, without explanation, that it had no authority to revoke after all.

Even though Mark Herring has himself sued MVP for over 300 violations during construction.

Even though MVP is under criminal investigation by the US. Attorney’s Office as a result of its actions.

As we put it, the board and Mark Herring’s office “folded like so many cheap suits.”

To date, no state official has publicly described how the board could possibly have concluded that it could not revoke its own certification, particularly when the certification itself says that it can.

Their silence speaks volumes.

Privately, however, people with knowledge of what transpired in that secret meeting have described to this author what happened.

And it’s not pretty.

Simply put, the board relied on two sections of the Clean Water Act, a twenty-five-year-old court decision and a forty-year-old letter written by an EPA official from the Gerald Ford administration — none of them relevant to the facts involved here — to reach the conclusion that the board was powerless to act.

You don’t have to be a lawyer or even read those precedents to understand that.

All you really need to do is ask other states what they think.

For example, try telling the New Mexico Environment Department that it cannot revoke a Section 401 certification.

Because that’s precisely what they did in 2016:

“In order to provide clear and consistent permit language across all Municipal Separate Storm Sewer System Permits in New Mexico, NMED finds it necessary to revoke the previous CWA Section 401 Certification of the proposed National Pollutant Discharge Elimination System (NPDES) permit.”

In fact, New Mexico threatened to do it again in 2017:

“The Department reserves the right to amend or revoke this certification if such action is necessary to ensure compliance with the State’s water quality standards and water quality management plan.”

Try telling Vermont’s Agency of Natural Resources, which in 2017 issued a Section 401 certification that said:

“The Department reserves the authority to reopen and alter or amend this certification if such action is necessary to assure compliance with the Vermont Water Quality Standards….”

Try telling Nebraska, which includes in its administrative code a provision on how changed circumstances may lead to revocation of a Clean Water Act permit and reissuance with new conditions.

Try telling Colorado, which has regulations that say this:

“A permit may be modified, suspended, or terminated in whole or in part during its term for reasons determined by the Division….”

Try telling Maine, which has regulations (Chapter 523) that say “Any permit noncompliance constitutes a violation of the Clean Water Act and is grounds for…for permit termination, revocation and reissuance, or modification….”

For that matter, try telling the Virginia legislature, which enacted Va. Code § 62.1- 44.15 to give the State Water Control Board the following powers:

“The board…shall have the authority….to issue, revoke or amend certificates….”

It is not surprising that all of these states, including Virginia, allow revocation of Section 401 certificates. That’s exactly what Section 401 of the Clean Water Act means when it says “No license or permit shall be granted if certification has been denied by the State.”

What is surprising is that the “cheap suits” who abdicated their watchdog role think they can get away with relying on provisions that do not at all apply to the situation faced by Virginia

According to people in the room on March 1, the board was told that a different part of Section 401 — Section 401(a)(3) to be precise — prevented them from revoking the MVP certification.

The problem with that claim is that Section 401(a)(3) only applies when a state certifies construction of a project and then the company applies for a second permit to actually operate the facility (“The certification obtained…with respect to the construction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other Federal license or permit required for the operation of such facility” if the state fails to revoke the construction permit within sixty days of being informed that an application to operate the facility has been filed).

If one thing is clear among the regulatory and real-world wreckage of the Mountain Valley Pipeline, it is this: the pipeline is not complete, and it has not applied for nor could it apply for an operating permit. And unless current federal court decisions revoking multiple other federal permits are reversed, it will never be in a position to apply for an operating permit because there will be nothing to operate!

The people who bought and sold this Section 401(a)(3) nonsense relied on exactly one case for their “analysis”: a 1991 decision from the D.C. Court of Appeals. That case is known as Keating v. FERC. We will refer to as Keating I for reasons that will become clear below.

In Keating I, a man by the name of Joseph M. Keating sought to build what he called the “Tungstar Project,” a small hydroelectric power plant, in California’s Inyo National Forest. Mr. Keating had applied for a permit to operate the Tungstar project and wanted to use California’s previous construction certification to get his operating permit, even though California had revoked the original certification.

Aside from a technical jurisdictional question (whether FERC or California state courts got to decide whether the revocation was effective — spoiler alert: it depends) the main point is that Keating I arose under Section 401(a)(3). As noted above, Section 401(a)(3) deals only with the stage of the process where a company is seeking an operating permit, something MVP is not doing. If there was any doubt on that subject, all one needs to do is read the second Keating decision, Keating II, where the same court made clear that Section 401(a)(3) applied only because “the FERC license for which Keating applied is…a license to operate the Tungstar hydropower project.”

Which brings us to Clean Water Act Section 401(a)(5), the second “authority” discussed in that secret March 1 meeting as standing for the proposition that states cannot revoke a certification:

Here is what Section 401(a)(5) says:

“Any Federal license or permit with respect to which a certification has been obtained…may be suspended or revoked by the Federal agency issuing such license or permit….”

If you missed the part where Section 401(a)(5) prohibits a “state” from revoking a certification it previously issued, you can be forgiven.

Because the word “state” does not appear anywhere in Section 401(a)(5).

Not to worry, say the state authority “deniers.”. The fact Congress did not mention states “proves” that they secretly intended to prohibit states from revoking a permit previously issued. They just forgot to say so.

If that sounds ridiculous, that’s because it is. Just ask all the states that understand they do have revocation power.

In one final attempt to make their argument, the state authority deniers point to the thinnest of reeds: an opinion letter written by the General Counsel for the Environmental Protection Agency.

Under President Gerald Ford. In 1976.

If placing Virginia’s water quality in danger in 2019 because of a forty-year-old letter from an EPA attorney sounds crazy, it is. And the craziness is revealed when you actually read that letter, which is all of three pages.

The opinion letter has the helpful title, “Withdrawal of State Certification under Section 401” of the Clean Water Act and the short answer given is not under the circumstances described.

The state authority deniers — the cheap suits in this farce — want you to stop right there and not read exactly what the EPA attorney said back in 1976.

But even in 2019, facts still matter.

Which is why it is important to realize that the EPA letter says this: “I do not consider at this time whether there may be circumstances in which withdrawal of state certification may be proper.” And it is equally important to consider that the EPA letter, like the Keating case, dealt with a company that was seeking a permit to operate under a previously issued state certification, something not present with MVP.

In case all of this is a little confusing, lets make it simple:

Neither Mark Herring’s office nor anyone else have pointed to a single instance where FERC — or any federal agency — has refused to honor a state’s revocation of a Section 401 certification made before a project was operating. Anyone who tells you differently is lying — unless they can provide some evidence.

Neither Mark Herring’s office nor any member of the water board have identified a single court that has ever held that a state is prohibited from revoking a certification — except in the limited instance where a second application has been filed to operate that facility. Anyone who tells you differently is lying — unless they produce such a case.

And anyone who tells you that states don’t have the power to revoke, should start by explaining why New Mexico, Vermont, Nebraska, Colorado, Maine, probably others, and — up until March 1 — Virginia — all seem to think they do have that power.

On March 18, Virginia Delegate Chris Hurst, who represents communities directly impacted by the Mountain Valley Pipeline, demanded that DEQ issue an immediate stop work order along the entire length of the MVP in Virginia. He noted that MVP violated at least ten state and federal statutes and certification conditions over a five-month period in 2018.

Hurst argues that these violations clearly establish that MVP is having “an imminent and substantial adverse impact to Virginia’s water quality,” giving the state clear authority to issue a full stop work order under legislation passed in 2018

DEQ will likely either ignore Hurst altogether or roll out the old “we wish we could do something, but we are powerless to act” claim.

When DEQ, or Mark Herring or water board members or anyone else spews that authority denying lie, remember we’ve been down that road before.

By the way, the cheap suits who push the notion that the Keating case “proves” that states cannot stop a project once they have certified it, might want to read the end of Mr. Keating’s not so excellent adventure.

The Tungstar project? It never got built.

It was killed. In Keating III.

By the same court that issued the decision in Keating I and II.

Remember that the next time a bureaucrat in a cheap suit tells you Virginia “has no power” to do the right thing.

Virginia needs a wardrobe makeover. Or at least an honest tailor.