Controversial Atlantic Coast Pipeline Narrowly Gets Approval, but There's a Catch

By Whitney Pipkin, Bay Journal News Service

A divided Virginia regulatory panel has given a qualified go-ahead to building a controversial natural gas pipeline across the state, but made its approval contingent on further review of the project’s water-quality impacts.

The State Water Control Board’s 4–3 vote on Tuesday, coming at the end of a tense two-day public meeting in Richmond, prompted opponents of the Atlantic Coast Pipeline to claim a partial victory, though officials seemed at a loss to explain what the decision means.

Before granting the project a key approval, some of the board’s seven members questioned whether they had enough information to certify that water quality would not be harmed by construction of the 600-mile pipeline across wild, mountainous terrain and the state’s portion of the Chesapeake Bay watershed. Therefore, the board conditioned approval on completion of several environmental impact studies.  

Officials from Dominion Energy, which is pushing the pipeline project, declared the board’s decision to be “another major step toward final approval.”

“We will work closely with the Virginia Department of Environmental Quality to complete all remaining approvals in a timely manner and ensure we meet all conditions of the certification,” Dominion spokesman Aaron Ruby wrote in a statement. The company has said it hopes to begin construction next year.

Environmental groups that have vehemently opposed the project took heart from the hedged decision, though late Tuesday it wasn’t clear how, when or even if the board would revisit the issue.

“At least the brakes have been placed on this project to make certain that state water quality standards are not violated, and that due diligence is paid,” said Pat Calvert, manager of water policy and campaigns for the Virginia Conservation Network. He said the decision “could be one of the largest water quality-impacting projects that any of these board members will see.”

This was the second pipeline decision in as many weeks after four days of public hearings and deliberations by the state board. Its members voted 5–2 last week to approve a similar certification for the Mountain Valley Pipeline, a smaller project that snakes across the southwest corner of the state.

Land being cleared for a 12-inch gas pipeline. The Atlantic Coast Pipeline would be 3.5 times larger. Photo: Dominion Pipeline Monitoring Coalition

A coalition of environmental groups filed suit against that project the next day, challenging the board’s ability to conclude that erosion control plans — which the board had not seen because they had not yet been developed — would protect water quality.

Public comments at each of the pipeline meetings questioned how the board could decide whether a project’s plans would be protective of water quality when they had not seen those plans.

“The central argument here, and the position of most groups that opposed approval, is that the board doesn’t have the relevant information to make an informed decision,” Greg Buppert, a senior attorney with the Southern Environmental Law Center, said before Tuesday’s decision. “The board has a logical and legal problem: It will have to decide that it has reasonable assurance that water quality is protected, but has never looked at the plans to make sure the earth stays on the mountainside.”

The board deliberated that issue at length during its public hearing Tuesday. Attendees said board members seemed frustrated by a confusing process and a lack of clear advice from their legal counsel and the Virginia Department of Environmental Quality. They wondered aloud how they could make a water quality decision while lacking key information.

In the end, the board made its approval effective only after its members and the public have a chance to review a handful of plans that are still being developed. Those include studies that the DEQ is conducting of plans for preventing erosion and stormwater pollution while crossing many streams, and plans for avoiding groundwater contamination during the pipeline’s construction through fragile karst terrain.

Even with these caveats built in, the decision could still face legal challenges.

“We are confident the record demonstrates construction of the pipelines would violate the law,” Peter Anderson, Virginia program manager of Appalachian Voices, stated in a press release. “On Friday, we filed a legal challenge to the Mountain Valley Pipeline, and we are considering all options for this project as well.”

It wasn’t immediately clear, though, whether the board would have the chance to formally approve — and whether the public would have the chance to comment on — those plans once they are completed in the coming months. The wording of the amendment, which was still being finalized, leaves those next steps up to interpretation.

When reporters asked DEQ spokesman Bill Hayden to clarify whether the board would get to vote again on components of this certification, he said he didn’t yet know. But environmental groups vowed to continue their fight against the project, which has garnered tens of thousands of comments and been the subject of several rallies over the last three years.

“Our groups are going to draft a formal follow-up response to the board in the next few days and try to lay out what we think the process should be, so the public can stay involved,” said Phillip Musegaas, vice president of programs and litigation at the Potomac Riverkeeper Network, which is working with other environmental groups on the issue.

One takeaway, Musegaas and others said, is that Dominion Energy cannot begin construction on the Atlantic Coast Pipeline in Virginia while the approval is still pending.

“The decision likely means this issue will be delayed into 2018 and into the administration of Governor-elect Ralph Northam, who has taken a less openly supportive stance on the pipeline due to environmental concerns,” wrote one organization opposed to the project, the Chesapeake Climate Action Network, in a summary of the decision. During the election campaign, Northam had said he’d leave it up to regulators at the DEQ and to the state board whether the project should go ahead.

The project has won approval from the Federal Energy Regulatory Commission, but still requires a permit from the Virginia Marine Resources Commission, which has yet to schedule any public hearing on the subject. The pipeline also needs a water-quality certification in North Carolina, where regulators have sought additional information from the company. At the same time, Dominion and its partners have gone to court seeking permission to use eminent domain to seize land from some landowners in the pipeline’s path in Virginia, North Carolina and West Virginia.   

Peggy Sanner, the Chesapeake Bay Foundation’s Virginia assistant director, wrote in a statement that the board made the right decision by refusing to let the pipeline project proceed “until threats from pollution are more thoroughly examined.”

“Building the pipeline without this information would disturb waterways across Virginia and increase pollution to local rivers, streams and the Chesapeake Bay,” wrote. “We will continue working to make sure the pipeline is held to the strictest environmental standards possible.”