Editor’s note: This is the third article of a four-part series about the decision by the 4^th Circuit U.S. Court of Appeals to Vacate a Clean Water Certification from the West Virginia DEP for the MVP. You can read the first two articles here and here.

GAP MILLS, W.Va. – As we previously reported, the United States Court of Appeals for the Fourth Circuit has vacated a Clean Water Certification from the West Virginia Department of Environmental Protection (DEP) for the Mountain Valley Pipeline (MVP). The decision, announced on April 3, stops construction of the MVP immediately – for now.

The unanimous decision was written by Chief Judge Roger L. Gregory. Gregory, in response to the DEP’s decision to grant the Certification to the MVP because it wouldn’t violate the state’s water standards, said the Court disagreed, writing, “We find the Department’s justifications for its conclusions deficient and vacate the certification.” Furthermore, In its decision, the three-judge panel repeatedly referred to the decisions about the MVP by the DEP as, “arbitrary and capricious.” 

Untold number of people along the route of the MVP concur. While one can’t count them – who can in an organic, grassroots uprising? – one certainly hears from them. So, I reached out to several activists I’ve come to know in my reporting upon fracking and related pipeline development, especially in West Virginia and Virginia. I provided three prompts for responses (below). Several responded via email. Their insight follows the Prompts.

Prompts

1. Offer a comment on this decision.
2. In a brief comment, add anything you’d like to say about your experiences with the MVP.
3. What are your thoughts about its future, in particular efforts by Sen. Joe Manchin to have it fast tracked through Congress, hence bypassing the regulatory/judicial process.

Joshua Vana, ARTivism: Albemarle County, Va. He directs ARTivism Virginia, which serves the greater pipeline fighting coalition in our region with art, music, film, messaging strategy, event production and a number of other ways through a coordinated community of ARTivists.

1. Though we regret that the 4th Circuit did not come to the same conclusion regarding Virginia’s 401 Water Quality Certification for MVP, we appreciate that the court acknowledged the gross neglect displayed by WV DEP, an agency that has reinforced the fantasy that giving MVP the go-ahead once more will produce different results. The story has been the same across state lines since MVP began construction more than five years ago, and no matter how state and federal agencies want to skew their own permitting processes to give this doomed project another green light, the fact is that no amount of special engineering or regulatory monitoring can make this project safe or legal. MVP’s failures are of their own creation, as this pipeline should have never been proposed in the first place. Local citizens, regional advocates, and water quality experts across Appalachia and the Piedmont have for years testified to this predictable scenario through every available public comment space, but the agencies – from VA DEQ and WV DEP to USFS, USFWS and FERC – unfortunately did not listen. They are once again tasting the bitter fruits of their own poison permit tree. Probably tastes a little like a hybrid of public outrage and money that was just flushed down a toilet.

2. I became involved in this fight more than six years ago to help stop what would obviously be an ecological disaster, and that’s what MVP has proven to be. The project is reckless, unnecessary, dangerous, and lawless – but despite the inertia of coordinating agencies and corporate backers, the movement to stop projects like this continues to grow. In it there is room for everyone who wants a safer, healthier, more livable future in Appalachia and across stolen land. We’re continuously inspired by the hard working and brave folks who are in this for the long haul – in it to win.

3. More than five years into construction, the efforts to fast-track MVP with a congressional get-out-of-jail-free card are signs of desperation. When the pipeline can’t be built legally, the only path left for its supporters is to change the law and run roughshod over every meaningful environmental protection within their reach. Insulating MVP from judicial review, in addition, signals an even more disturbing, dystopian corporate takeover than the one that’s allowed MVP to get this far in the first place.

The interests backing MVP’s joint venture partners are losing money on this project at an impressive clip, and you don’t need to be a financial expert to recognize that the time to bail on this pipeline was years ago. We expect Senator Manchin and his other crooked friends to tighten their grip on the only thing they know how to do: running political errands for their donors of the fossil fuel and financial sectors in an effort to once again consolidate power and line their own pockets. They just can’t help it. We have regulations to protect air and water quality, wildlife and their habitats for a reason, but apparently Mr. Manchin doesn’t understand this, doesn’t care, or simply believes that his donors’ wallets are more important than his constituents’ lives.

Unfortunately, the completion of MVP seems to be a bipartisan effort with the support of the White House and fossil-fuel funded legislators on both sides of the aisle, falling right in line with the Biden administration’s recent abandonment of even more of their campaign promises on permitting new oil drilling like the Willow project in Alaska. Our coalition will continue to call on the good people out there to take action, who care about their communities and wild places, the water they drink and the air they breathe to demand that the resources we depend on to live no longer are threatened by MVP and other similarly destructive and illegal land grabs for corporate profit. No matter how long it takes, we will outlast their efforts and see to it that this cursed project never becomes operational, inevitably meeting its resting place alongside the Atlantic Ghost Pipeline in the Graveyard of Broken Pipeline Dreams. It’s time for Equitrans Midstream and its partners to throw in the towel on this one before they watch another billion dollars get washed down the drain.

Mara Robbins of Floyd County, Va. She has written for the Appalachian Chronicle here and here. Her response to the prompts is consolidated. She has also provided a Water Protection Proclamation of Virginia, which is published at the end of this article.

After nearly nine years of bearing witness to decision-makers’ deference to petro-colonizers who’ve continued to terrorize communities, it’s difficult to resist cynicism. Though I remain skeptical of any victory which involves follow-through from agencies who’ve continued to capitulate to industry rather than protecting and preserving the health and safety of communities, I still hold hope that some people on the inside of the system intend to accurately represent the people. Continuing to privilege fossil fuel over communities–ecological and human–is causing obvious harm and doing unforgivable damage. The lack of viable action from regulators and politicians has required us to perform the duties that our so-called environmental quality or protection agencies have failed to accurately execute. 

In 2017 at the Trinity Center in Richmond VA, we made it clear to the Virginia State Water Control Board that if they do not protect our water, we the people will. Some did so by literally blocking the path of Mountain Valley Pipeline construction by living in trees, erecting monopods in the middle of forest service roads, locking down to Precision Pipeline equipment and other courageous acts of civil disobedience. Many people learned how to properly document violations and submitted them to agencies who absolutely could have issued stop work orders or revoked permits which were obviously undeserved. We’ve become intimate with time stamped evidence of abject atrocity. Six years later, there is simply no way in which to prove that the MVP, LLC can be built without irrevocable damage being done. This is due to the continued commitment of the people to do the work that has not been done with due diligence or been swept under the rug by those who created the rug. Note: It’s really difficult to sweep all that mud under the rug. 

So-called West Virginia has different water quality standards than so-called Virginia. Evidently there are suitable laws in which to be able to cite MVP with documented violations. The MVP LLC and associates simply cannot comply. When viable laws are actually enforced, climate mercenaries such as those orchestrating the MVP cannot continue to plunder, pillage and destroy. So far as I understand it, the recent VA 401 was applied only to stream crossings, whereas the whole kit and kaboodle was included in the WV decision. Not only that, the blanket 404 Army Corp permit cannot be applied. 

So really. How could the MVP continue to be constructed under these circumstances? Well, they’ll try. And we will continue to get in their way in whatever ways we can. The water won this one. But chances are this cycle will continue for a while longer.  Make no mistake though. We will break this chain. We are watching, we are documenting, we are vigilant, we are prepared to take action and we WILL win.

JL Fogo, former Director of Preserve Floyd, Floyd County, Va.

I guess what I would have to say is, I have absolute respect and love for the many people who worked so hard for so many years to help shed light on the damages that are being caused by the MVP pipeline. There are so many people who have dedicated their lives to helping to preserve the Appalachian mountains through their opposition to the MVP. I am in awe of their efforts.

Maury Johnson, affected landowner and a member of Preserve Monroe, and the West Virginia Co-chair of the POWHR Coalition, Monroe County, W.Va.

1. Today’s decision by the 4^th Circuit Court of Appeals striking down the WV DEP Permit to cross waters in WV is not unexpected.  Having taken a long and informed looked at the now Vacated WV Permit it was clear to me that the permit was just another attempt to fast track the MVP and would never stand up to the scrutiny of the court. I can rest assured that the beloved Candy Darter and other precious plants and animals will not be eliminated by the construction of the MVP. It is time that MVP halt all attempts to complete the Mountain Valley Pipeline and start the long process of restoring the damage they have done across WV and VA. A side note to Senator Joe Manchin. If you even try to exempt MVP or any other project from thorough environmental laws or judicial review you will fail, again.

 2. Many landowners who have opposed the Mountain Valley Pipeline have been bullied and they have tried to intimidate many of them. My experience has been much like dealing with your worst nightmare of a neighbor. Some words that come to mind are: disagreeable, troublesome, annoying horrible appalling awful and dreadful.

3. Any “permitting reform” that expedites projects like the MVP will face massive opposition from most of the Democratic majority in the Senate and the Republicans do not want to help Joe Manchin so in all likelihood Joe Manchin’s attempt to push through the MVP again will fail for the fourth time. He has highlighted this project to such a level that it is now one of the most opposed projects in the country. So you might say he is helping us kill the MVP project. 

Paula Mann, Owner, Mountain Media Productions, Monroe County, W.Va.

It is great to see that the court vacated the clean water certification from the West Virginia Department of Environmental Protection Agency for the Mountain Valley Pipeline; they did the right thing. The MVP has committed endless violations related to the water. I have seen many of these violations myself and have experienced personally the effects of this pipeline construction with my own water when the pipeline was put through the headwaters of my well.

Sen. Joe Manchin has tried with his “Dirty Deal” to get the MVP pushed through, but failed. Manchin’s proposal would be devastating to the protection of our water supplies that lie in the path of the Mountain Valley pipeline. We have had enough of this pipeline construction affecting our water supplies, this project need to be shut down.

S. Tom Bond, Retired Chemist and landowner, Lewis County, W.Va.

I think it is clear the pipeline is in the interest of the company and against the interests of those who are having the gas removed (except the royalty owners who frequently are land owners).  It is also against the interest of the land owners who have the pipeline, those who are near the processing facilities and anyone in the world where the  carbon gases are dumped after burning – the whole world population of the earth! There are things the public suffered that didn’t carry enough weight.  Sacrificing so billionaires can make money Is not the intent  of the constitution.

Water Protection Proclamation of the Virginias

By the people, of the people, for the people, for the honored waters

We the People of the Commonwealth of Virginia and the State of West Virginia, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the commons, promote the general welfare and secure the blessings of liberty to ourselves and to our waters do hereby ordain and establish this protection for the waters of the Virginias.

We stand to protect our water. We stand to preserve our children’s water future. We stand to defend the right of every Virginian to clean water. We stand to oppose the Mountain Valley Pipeline. We stand to oppose the Atlantic Coast Pipeline. We stand as citizens of Virginia in defense of our waters. We stand to dedicate. We stand to consecrate. We stand to protect our headwaters, our watersheds, our rivers, our streams, our wells and our springs.

If you will not protect our water? 
We the people will. 
If you will not safeguard our water resources? 
We the people will. 
If you will not defend our water? 
We the people will.

We stand to insist that water is a human right. We stand to ensure our voices are heard. We stand to remind you that government is or ought to be instituted for the common benefit, protection and security of the people and community. We stand to remind you that of all the various modes and forms of government that which is best is capable of producing the greatest degree of life, liberty, safety and pursuit of happiness and safety and is most effectually secured against the danger of maladministration. Therefore it is highly resolved that whenever any government shall be found inadequate or contrary to these purposes a majority of the community hath an indubitable, inalienable and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal. It is up to us  to be dedicated to the unfinished work of protecting our water It is up to us to be devoted to the great task remaining before us that from these honored waters we take increased commitment to the cause of the cherished commons.

Through this action we know that we shall have a new birth of freedom and shall let justice roll on like a river, righteousness like a never-failing stream.

First written in 2017; revised in 2023

© Michael M. Barrick, 2023. Home page photo, “MVP Destruction Zone” courtesy of Preserve Monroe.

Want to learn more about the MVP, fracking and pipeline construction? Check out my new book, Fractured Sanctuary: A Chronicle of Grassroots Activists Fighting Pipelines of Destruction in Appalachia.