Air and water board bills hurt businesses and communities

By Freeda Cathcart 

SB 657 and HB 1261 are air and water pollution bills that appear to have been crafted to help the Mountain Valley Pipeline, after the State Air Pollution Control Board denied the MVP Southgate permit for the Lambert Air Compressor Station.

MVP’s lobbyists have misled legislators to try to remove the “power” from environmental citizen boards and give it to the Department of Environmental Quality.

Legislators were persuaded that taking away the “power” from the boards and giving it to the director of the DEQ would be good for business.

However, if the bills are enacted it would create more instability for business development based on recent court rulings. Companies are being pressured by investors and workers to have good environmental, social and governance ratings. It doesn’t help a company to obtain a permit only to have the federal courts throw it out as being unlawful.

State code already requires the boards to implement the DEQ’s recommendations unless there are valid, legal reasons not to. This change happened after a 2007 bill with a re-enactment clause was passed twice, once in 2007 and again in 2008 when it went into effect. The boards are always provided advice in real time by an assistant attorney general during their deliberations to make sure their decisions are in compliance with state code, making the proposed legislation unnecessary and undemocratic.

The recent State Air Pollution Control Boardhearing in Chatham exposed MVP’s lack of preparedness and DEQ’s lack of providing appropriate guidance for MVP Southgate to be successful. The board members did their duty by questioning the specs for MVP Southgate which included gas-powered turbines. A nearby Transco pipeline had recently upgraded their compressor station to use electric turbines, resulting in less harmful emissions. If MVP Southgate was going to be a state of the art development, then electric turbines should have been included in their plans.

The board interacted with environmental lawyers who attended the MVP Southgate hearings. They wanted to know why the U.S. 4th Circuit Court of Appeals threw out an air board permit for the Atlantic Coast Pipeline and how that decision should guide the permitting for MVP Southgate. The ACP permit was thrown out because of federal environmental justice laws that are still in effect. If DEQ was doing its job it would have warned MVP of the problem and required a solution, before submitting a recommendation to the APCB to issue a permit.

The APCB had followed the DEQ staff’s recommendation to issue the ACP Union Hill permit according to state code, even though dozens of scientists, lawyers and university professors warned them that the permit was illegal and unjust according to federal laws. Part of the 4th Circuit Court ruling focused on ACP’s plans not to use electric turbines. The DEQ’s recommendation to the APCB to issue the MVP Southgate permit without requiring electric turbines demonstrates that the DEQ didn’t learn from the ACP Union Hill lawsuit and the DEQ can’t be trusted with the sole authority to issue permits.

Other recent significant developments on permits by the APCB and the State Water Control Board and court challenges:

• 2018: SWCB votes to have a hearing to revoke the MVP permit

• 2019: SWCB holds a meeting to decide how to proceed to have a hearing on how to consider revoking MVP’s permit. SWCB is told state code prevents it from being able to stop work on the pipeline or to revoke the permit.

• 2021 a lawsuit is filed and pending in the 4th Circuit vourt against the Clean Water Act permit issued to the Mountain Valley Pipeline (MVP) by the SWCB based on DEQ’s recommendation.

• Jan. 2022 the 4th Circuit court throws out MVP’s permit to build through the Jefferson National Forest due to inadequate controls to keep sediment from going into the streams.

• Jan. 2022 the MVP files a suit in the 4th Circuit against the APCB for denying their permit request .

• Feb. 2022 the 4th Circuit throws out the U.S. Fish and Wildlife permit for the MVP because of the harm to endangered species. The ruling included concerns about inadequate erosion and sediment controls creating pollution from MVP’s project that have been harming the habitat for endangered species.

• Feb. 2022 the Chesapeake Bay Foundation intervenes in support of the APCB denial of the MVP permit in the 4th Circuit case.

A recent amendment to the Senate bill requires the DEQ to have citizen hearings. Based on recent past experiences, it serves no purpose to have hearings when an agency isn’t listening or taking action on the information it receives. Issuing unlawful permits hurts companies, landowners, local businesses and communities.

It would be prudent for the General Assembly to see how the pending court cases resolve before making changes to the state code. Let’s give the truth a chance. Changes of this magnitude deserve more time and consideration before becoming law.

Attaching a re-enactment clause to SB 657 and HB 1261 would give the General Assembly a year to determine if this legislation would be beneficial or if it would do more harm than good.