North Carolina Law Enforcement Wrong to Target Pipeline Opponents
It is Duke, Dominion and EQT that are terrorizing people
By Michael M. Barrick
Myra Bonhage-Hale, then of Alum Bridge, W.Va. holds signs with questions she had for Console about pipelines. This “activist” eventually moved out of state.
RALEIGH, N.C. – The North Carolina’s surveillance and counter-terrorism unit has conducted a “threat assessment” of opponents to the Atlantic Coast Pipeline (ACP), which is scheduled to be built in eastern North Carolina, according to North Carolina Policy Watch: “State Bureau of Investigation unit prepared “threat assessment” of Atlantic Coast Pipeline protestors.”
According to the article, “The state’s surveillance and counter-terrorism unit, the Information Sharing and Analysis Center (ISAAC), warned law enforcement officials that the Atlantic Coast Pipeline could attract “violent extremists” who are opposed to the natural gas project in North Carolina … .” If approved, the Atlantic Coast Pipeline will run more than 170 miles through North Carolina roughly parallel with I-95 east of Raleigh.
The law enforcement analysis could not be more misguided.
Joao Barroso makes a point with neighbors in Randolph County, W.Va. He became an “activist” to protect hundreds of acres of his pristine land.
There are terrorists involved in fracking and related pipeline development – if that’s the word the law enforcement wishes to use – but they are not the opponents to the pipeline; rather the ones terrorizing people and the environment are the corporations building the pipelines. These include Duke Energy of Charlotte, Dominion Resources of Richmond, and EQT of Pittsburgh. The latter company is the primary developer of the Mountain Valley Pipeline (MVP), another controversial pipeline being built through West Virginia and Virginia.
The ISAAC would be well served to listen to this excellent interview of Ellen M. Gilmer, a legal reporter with E&E News by West Virginia Public Radio. Gilmer offers an analysis of the court battles involving both pipelines. One listening to it will see that pipeline opponents don’t have to resort to “terrorism.” Why? They are enjoying many victories in state and federal courts. Victories, in fact, that for now have shut construction of the pipelines down.
Opponents are not wide-eyed radicals and Gilmer knows it. How do I know? In 2015, I gave her a tour of the area in northern West Virginia where both pipelines originate. While living and reporting from there, I was covering construction of the Stonewall Gas Gathering line, a 36” diameter, 55-mile pipeline. Because it did not cross state boundaries, it did not need federal approval. Nevertheless, the pipeline’s builders were terrorizing people along the entire route.
Justin McClain (L) listens as his father, Robert talks about the damage to their crops done by the Stonewall Gas Gathering Pipeline
As I took Ms. Gilmer around, I introduced her to the people most impacted by that project and introduced her to others whose land is threatened by the ACP and/or MVP. You’d have to ask her yourself, but I’m pretty sure she didn’t meet anyone that could be construed as a terrorist.
But, this is what she did see (or hear about because of time constraints):
- A farmer in Doddridge County whose crops were destroyed because of improper erosion controls upstream during pipeline construction
- Sick people throughout Doddridge County
- The local newspaper is owned, literally, by gas and oil company owners
- Citizens injured and killed by industry trucks
- Residents leaving the state
These are just but a few examples. There are several more links at the end of this article. However, one moment stands out for me. It was at an event where the fossil fuel industry and law enforcement teamed up to intimidate local citizens simply curious about the pipelines as they were first announced. It was then that I knew the fix was in. The corporations got to the legislators, who then pressured law enforcement. Now it’s happening in North Carolina. It is beyond unnecessary – it is chilling.
What is fracking?
Fracking is a slang word for hydraulic fracturing, the process of injecting a fluid consisting of water, sand and chemicals at high pressure into shale. This fractures the rock, releasing natural gas, which is then extracted. In West Virginia, Ohio and Pennsylvania the Marcellus shale, a layer of rock 3,500 – 8,000 feet below the surface, is the object of fracking. The vertical depth of the formation is about 150 feet. Whether recovered or left behind, the frack fluid presents problems. The wastewater contains not only the chemicals added to the water, but also leaving minerals and radioactive materials recovered as part of the extraction process.
Failed erosion control on construction of Stonewall Gas Gathering pipeline in West Virginia Photo by Autumn Bryson
Pipeline construction
Fracking and pipeline construction are inexorably linked. Without fracking, there is no need for a pipeline. With fracking, all the risks associated with pipeline construction serve only to aggravate the impact of the process. So, there are many good reasons (see next section below) for people to oppose the ACP and MVP. The ACP is the longest, at more than 600 miles, terminating in Robeson County, N.C.
The companies seeking approval to build the ACP have harassed land owners wishing to protect their land from the devastation that would be caused by the ACP construction, not to mention the potential danger it poses for those living alongside of it. Having learned of what the people along the proposed ACP route have endured in West Virginia and Virginia, it is clear that the people of North Carolina need political leaders who will defend them, not consider them threats.
Fracking impacts and risks (Or ‘A Dirty Dozen Reasons to Oppose Fracking’)
Dead and injured workers (here and here), explosions on fracking pads (here), dead and injured motorists (here and here), destroyed wells and streams (here), dead livestock (here) and sickened residents (here) are just some of the public health and safety risks associated with fracking. Indeed, the list is rather long. The negative by-products of fracking include:
- Public Health Issues
- Water Use and Contamination
- Radioactivity
- Air Pollution
- Waste Disposal
- Site Development and Well Pad Activity
- Misuse of Eminent Domain
- Climate Change
- Traffic Congestion
- Potential Earthquakes
- Industry Instability
The people experiencing these events and tactics do not sound like terrorists. They sound like people who are being terrorized.
A convoy of gas trucks rumble through downtown Weston, W.Va. at lunchtime.
Crony capitalism
This is not new to the fossil fuel industry. A century ago, during the West Virginia Mine Wars, as the coal companies worked to keep the unions out of the coal fields, they hired Baldwin-Felts detectives to brutalize the miners and their families. The companies also ensured that local law enforcement did their bidding.
Perhaps the most famous of these “lawmen” was Don Chafin, the sheriff of Logan County, W.Va., during the Mine Wars. According to the West Virginia Archives and History website, “In 1921, he mobilized a small army of deputies – later formally organized into the militia by order of the governor – which met the union organizers in skirmishes at Blair Mountain on the Boone – Logan county border and in the Crooked Creek section. Thousands of shots were fired and much blood shed but there were relatively few casualties. Once source says 47 were killed and more than 100 injured.
“Mingo County then the center of organizing activity, was under martial law. Union miners in Kanawha heard rumors that their comrades to the south were being mistreated. That started their march south through Boone and Logan. On their way they planned to break down Chafin’s non-union stronghold. Their favorite marching song was “Hang Don Chafin to a Sour Apple Tree.’”
ISAAC’s snooping proves beyond any doubt that efforts by the fossil fuel industry to get the likes of Don Chafin to do their bidding here and now remains alive and well.
The proper response – A moratorium on fracking
Clearly, despite industry claims, it has much to prove before we can consider fracking and related pipeline development safe. So, the only option is to operate according to the Precautionary Principle. The Science & Environmental Health Network says about the Precautionary Principle: “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action.”
Based on this definition, the only proper response is a moratorium on fracking. A moratorium remains in place only so long as the burden of proof has not been met. Should the industry, as some point in the future, demonstrate that fracking does not pose a threat to public health and the environment, the moratorium could be lifted.
Children suffering nosebleeds is just one public health hazard in fracking zones
Add me to the list
I’m a pipeline opponent. I’ve never pretended otherwise. My writing has been focused on holding the fossil fuel industry accountable for the death and destruction it has caused in Appalachia and beyond. But, I’ve never touched a soul, never issued a threat, never trespassed, never polluted streams or any of the other numerous horrors the fracking industry has done.
What I have done is exercise my First Amendment rights. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Motivated and informed by my understanding of liberation theology, I have spoken and written against fracking and related pipeline development. I’ve been part of demonstrations of assembly. In short, I’ve been one of thousands of pipeline opponents who have legally and appropriately petitioned the Government.
So, if that puts me on a threat assessment watch list, then add me to the list and watch away. I’m quite familiar with the fossil fuel industry’s tactics. The ISAAC list is one I’d be proud to be on. But it won’t stop me or any other pipeline opponents. Why? Because we understand that it is time that the people – not crony capitalists – run our state and nation.
© Michael M. Barrick, 2018
About 50 pipeline activists gathered peacably at the Preserving Sacred Appalachia gathering in April 2015 in Charleston, W.Va. Here, Tierra Curry (L), Susan Hedge and Allen Johnson lead a discussion on the sacredness of Appalachia. Photo by Keely Kernan
Other articles I’ve written about the Fossil Fuel Extraction Industry
ACP Would Require Extensive Mountaintop Removal
Atlantic Coast Pipeline Costs Outweigh Benefits, Claims Independent Study
Breaking Ground, Breaking Hearts
Citizen Groups Organizing in Response to Fracking
Citizen Groups to Unite for Water Justice in West Virginia and Beyond
Clarksburg Newspaper Editorial an Affront to West Virginians
Dominion is a Bully, not a Community Builder
Environmental Scientists, Activist Applaud Mountain Valley Pipeline Ruling
EQT Letter Characterized as Misleading and Bullying
Factual Reporting is not Always Balanced
FERC Independence Challenged by Nonprofits
Fracking Forum a Time to Learn, Unify and Act
Groups Work to Bring the Public Voice into Gas Pipeline Projects
Health and Well-Being of Residents Being Subordinated to Fracking Industry
Incompetence and Complacency Increase Dangers from Fracking
Jury in Pennsylvania Fracking Case Sees Clear Value in Lives and Property
Lewis County Resident Issues a Plea: Wake up West Virginia
Natural Gas Industry Moves from the Absurd to the Profane
Natural Gas Pipelines, the Drumbeats of War and Our Sense of Entitlement
OVEC Publishes Newspaper to Reach 29,000 West Virginians
Pipeline Proposal Raises Questions that Beg for Answers
Pipeline Monitoring Group: FERC Not Doing Job on ACP
Poor Emergency Planning in West Virginia Puts Citizens at Risk
Proposed ‘New” Route for Atlantic Coast Pipeline no Better than One Rejected, Say Opponents
Putting Liberation Theology to Practice in Appalachia
Seeking Dominion over His Own Land
Unity the Theme at ‘Preserving Sacred Appalachia’ Conference
Virginia Officials Agree to Demands from Advocacy Group about Pipeline Deliberations
West Virginia: The Rodney Dangerfield of the USA
West Virginia Residents in Heart of Fracking Field Join in National Action
West Virginians and Pennsylvanians Standing in Solidarity Against Natural Gas Industry
West Virginia’s Top Story in 2015: People and Land under Assault
Why People Deny Global Warming Clues
Citizens Encouraged to Request Public Hearings about MVP
West Virginia Department of Environment Protection needs to hear more voices
By John W. Cobb, Jr.
IRELAND, W.Va. – With 11 counties in West Virginia projected to be affected by the Mountain Valley Pipeline (MVP) route should it receive approval, voices from one end of the state to the other must be heard. The West Virginia Department of Environment Protection (WVDEP) needs to hear from citizens while there is still time. The potential impacts to water supplies (aquifers), streams, wetlands and rivers is significant; therefore citizens need to write the WVDEP to request public hearings in the affected counties.
So far, such requests are working.
Proposed Mountain Valley Pipeline route (in green). Note that it runs from near the Pennsylvania and Ohio state lines in the north to the Virginia state line in the south. Courtesy: FracCheckWV
The WVDEP Division of Water and Waste Management (DWWM) will be extending the public comment period on the State 401 Water Quality Certification for the proposed MVP project until further notice. It takes only a few minutes to send them a letter or email requesting a public hearing in your county so you can learn and get answers to your concerns.
Originally, the public comment period, which is required under state regulation 47CSR5A, would have ended next week, but because of widespread public interest in the proposed project, DWWM will be scheduling public hearings to discuss certification of the proposed project. Information about the dates and locations of those hearings will be made public as soon as plans are finalized.
The WVDEP says they will likely prioritize holding public hearings based on the counties generating the most comments. For now, those are from Greenbrier, Monroe and Summers counties. We need more folks along the MVP Route to respond now. We need to help get the word out to folks further up along the proposed route, including Wetzel, Doddridge, Harrison, Lewis, Braxton, Webster, Nicholas, and Fayette counties. Every citizen along the route needs reasonable access to public hearings. By writing the WVDEP, it will increase the chance that no citizen will be left out.
The Mountain Valley Pipeline is a $3.5 billion project, developed by EQT Corp., and it involves a 42-inch-diameter pipeline that would run 301 miles south from the Equitrans L.P. transmission system near the MarkWest Energy Mobley Complex in Wetzel County to a Transcontinental Gas Pipeline Co. compressor station in Pittsylvania County, Virginia. This project is one of multiple pipeline projects currently under review by the Federal Energy Regulatory Commission (FERC) one of the other projects is the Atlantic Coast Pipeline that will run somewhat parallel and north of the Mountain Valley Pipeline.
When issuing certification, DWWM’s 401 Certification Program may consider the proposed activity’s impact on water resources, fish and wildlife, recreation, critical habitats, wetlands and other natural resources. In its 401 certification application, EQT anticipates that the MVP project will have temporary impacts to approximately 49,892 linear feet of streams and 18.9 acres of wetlands and permanent impacts to approximately 3,125 linear feet of streams and 10 acres of wetlands within the Mountain State.
Comments and information relating to the certification should be emailed to DEP.comments@wv.gov, with “MVP 401 Certification” in the subject line or mailed to:
West Virginia Department of Environmental Protection, Division of Water and Waste Management
401 Certification Program
601 57th Street SE
Charleston, WV 25304
Responding now with a request for a public hearing in your county will give you and your neighbors a chance to express your concerns to the West Virginia’s Department of Environmental Protection.
(C) John W. Cobb, Jr., 2016. Mr. Cobb writes from his home in Ireland, W.Va.
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Note: The original version of this article listed 12 counties. The correct number is 11. We regret the error.
Environmental Scientists, Activist Applaud Mountain Valley Pipeline Ruling
Judge concludes proposed Mountain Valley Pipeline does not benefit the people of West Virginia as required by state law
By Michael M. Barrick
UNION, W.Va. – This village barely more than a block long is customarily quiet and peaceful, serving as the seat of government for Monroe County, which is framed by the Greenbrier River and the high peaks that form the boundary between Virginia and West Virginia in the Jefferson National Forest. As such, it is a mixture of breathtaking valley farms, soaring mountains and historic structures.
For months, though, it has been the scene of turmoil as local citizens have been battling with companies seeking approval from the Federal Energy Regulatory Commission (FERC) to build the Mountain Valley Pipeline (MVP). The 42-inch diameter MVP would be approximately 330 miles long, running from North Central West Virginia and through Monroe County into south-central Virginia.
At issue is whether or not West Virginia’s eminent domain law allows MVP to access private property to survey prospective routes prior to FERC rendering a decision. MVP argued so; local residents said otherwise.
Monroe County Circuit Judge Robert Irons concurred with the citizens here on Aug. 5.
After a morning trial, Irons ruled that MVP had not demonstrated that the proposed pipeline provided sufficient public use for the people of West Virginia, as required by West Virginia eminent domain law. Irons issued a preliminary injunction sought by Bryan and Doris McCurdy of Greenville, who were represented pro bono by lawyers from Appalachian Mountain Advocates.
Natalie Cox, the Corporate Director of Communications for EQT, a company seeking approval to build the pipeline, said, “While we respect the Court’s bench ruling, we will review the written order once it is received and consider out options going forward.”
Nevertheless, Irons’ ruling was applauded by two environmental scientists and a Monroe County resident that have visited northern West Virginia – where construction of the Stonewall Gas Gathering pipeline is underway and fracking is widespread. After visiting the Marcellus Shale fields of northern West Virginia, the three have been warning their communities about the human health risks and ecological destruction that accompanies the gas companies’ extractive processes.
Laurie Ardison, who has been active in grassroots efforts in Monroe County, said, “I believe it is time for citizens’ rights to emerge again. This ruling is absolutely appropriate. Property owners should never have to live in fear of uncontrolled, unfettered, unethical gas industry intentions.”
Dale McCutheon served as a county sanitarian in seven West Virginia counties at different intervals. He is a registered sanitarian with a Master’s in Environmental Science. He has conducted surface and ground water studies for federal, state, and county governmental agencies as well as local organizations.
A resident of Union, he said, “Water-related issues are of special concern to me. Of particular concern to Monroe County residents is the potential impact to the county’s water resources. The proposed routing of the pipeline through areas of steep terrain and karst topography – which provides the majority of the county water supplies, both public and private – threatens the most precious and essential resource. Monroe County does not, as many adjacent counties do, have a river to provide a continuing water source, so the loss of water resources due to an impact of a pipeline would have an unalterable effect on the health and well-being … of the residents.”
Autumn Bryson is an environmental scientist who recently concluded a Sediment and Erosion Control Assessment of the Stonewall Gas Gathering construction activities in northern West Virginia (soon to be published on the Appalachian Chronicle). She works out of neighboring Greenbrier County. She remarked, “As an environmental scientist, I am very concerned that these companies want to be above the law when it comes to our land and resources. We need more judges and people in leadership roles to have the courage to stand up to the oil and gas industries and let the corporate employees know that they need to abide by the laws like every other responsible human being.”
McCutheon, whose ancestry goes back six generations to the original settlement of the area in the late 1700s, and who has spent his professional life working on environmental and health concerns, pointed out, “Monroe County has, heretofore, primarily due to the lack of coal, oil and gas reserves, not been subject to the degradation that has taken place in much of the state as a result of exposure to the activities of the extractive industries.”
He continued, “Its mountains are unscathed, its streams are still pure and free-flowing and its farm fields remain verdant and green. The people of Monroe are strong-willed, independent folks who highly value their rights to privacy and full enjoyment of their properties, and strongly resist efforts by anyone, including government or private entities, to encumber or diminish those rights.”
Ardison concurred, saying, “This is why we have a constitution in the first place. I urge anyone reading this to speak up and claim their rights.” She concluded, “We’re strong and proud people in this state. Let’s work together to keep it wild and wonderful.”
© The Appalachian Preservation Project, 2015. The Appalachian Chronicle is a publication of the Appalachian Preservation Project. If you find this writing of value, we hope that you will consider support our independent work by becoming a member of the Appalachian Preservation Project. You can learn more here. By doing so, you will be supporting not only this website, but also our other outreaches, programs and partnerships.
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A Plea to West Virginians: Throw Off Your Oppressors
Before surrendering or joining the exodus, get educated and fight – peacefully – against the powerful interests which control The Mountain State
By Michael M. Barrick
ALUM BRIDGE, W.Va. – The recent admission by Secretary Randy Huffman of the West Virginia Department of Environmental Protection (WVDEP) that the agency he heads can’t do its job because powerful business and political interests control The Mountain State is a wake-up call to all West Virginians.
It is time of us to throw off our oppressors so that Huffman and other public officials can do their jobs.
In the last two years, I have put thousands of miles on my little car covering the energy extraction industry. What I have discovered is that West Virginians are basically in four camps:
1. Some work for the industry and truly believe they are doing good work; these folks are in the minority.
2. Others are working against the industry through established environmental or social justice groups and alliances because they consider the industry an assault upon the people and ecology of West Virginia; they, too, are in the minority.
3. Still others have just given up and have joined the exodus of West Virginians going to what they hope are greener pastures; these folks are also a small minority, though it is causing a brain drain that will have an impact upon the state that is greater than their numbers.
4. Finally, there are the docile West Virginians. They just roll over and accept whatever their public officials, business leaders or church leaders tell them. They, sadly, constitute the majority of West Virginians.
You may disagree with those categories. This, however, is my experience. It is also consistent with our state’s history.
This is an appeal to folks in all four categories, as well as those few prophetic voices in our hills and hollows, to get educated and fight – peacefully – to rescue our home from the powerful people and interests that have made West Virginia their own personal playground to enrich themselves.
Example of WVDEP
According to a handout I received recently from a representative of the WVDEP, the agency’s mission is a simple one: “Promoting a healthy environment.” This, one presumes, applies not only to the ecology, but also public health, as the two are inseparable. Yes, there are other state and local agencies that are responsible for the health and well-being of people, but that does not preclude any agency from discerning that caring for the state’s people is within their scope of work. Yet, Huffman tells us, he can’t do that. Giving him the benefit of the doubt that he is a person who takes public service seriously, we, as citizens, are obligated to help him, just as he asked folks in Doddridge County to do. Before doing so, there are a number of matters to consider.
Mingo County’s example
Last week, I visited Mingo County for the first time since 1978. Frankly, nothing has changed. The cycle of poverty continues. There are numerous reasons for this, but the end result is that the poorest of our state four decades ago are still the poorest of our state. This cannot be blamed on the so-called “War on Coal.” In fact, the blame rests with the coal industry. Consider this description of Mingo County from “West Virginia County Maps.” Published by a private company, the authors nevertheless acknowledge on the title page, “The publisher wishes to gratefully acknowledge the cooperation of the … West Virginia Department of Commerce, Marketing & Tourism Division.”
Here is what that Division submitted for publication: “Williamson lies in the center of what is called the ‘Billion Dollar Coal Field.’ In the middle of the 1940s there were 100 mines in a 20-mile radius of the city.” Not even Donald Trump could blame President Obama for what happened in West Virginia in the 1940s. And what did happen? Before and since, that billion dollars has left the state. If it had not, the cycle of poverty in Mingo County and other communities in southwestern West Virginia and eastern Kentucky would long ago have ended. In short, the coal barons – not President Obama or any other straw men – are responsible for the poverty afflicting our southern coal fields. It is they who are the oppressors.
Lessons from a topographical map
Looking at another map of the central part of the state tells the same story. It is a topographical map of the Vadis quadrangle. It includes parts of Lewis, Doddridge and Gilmer counties. Published in 1964 and revised in 1978, it is dotted with more gas and oil wells than one can count. There are certainly well over 100. Again, if the energy extraction industry was and is so good for the people of West Virginia, where is the wealth to show for it? It is certainly not in the pockets of West Virginians. Instead, as it has since the late 1800s, the money has flowed out of state to corporate barons, many who then stash the cash away in offshore accounts.
Fracking
Then there is fracking. The most startling fact about fracking is that any West Virginian would support it in light of the history just outlined. Again, though, the industry promises jobs. Those jobs, however, are temporary and very unreliable as we have seen as oil prices fluctuate. Additionally, it is becoming increasingly clear that the jobs come at a great cost, as those working in the fracking fields are working in a very unhealthy environment. The residents, though, suffer the most. The loss of land, sleepless nights, water supplies destroyed, children and adults experiencing everything from nosebleeds to cancer, public roadways ruined and communities divided (Divide & Conquer is a fundamental strategy of the energy extraction industry), make it clear that the only people benefitting from the process are corporate CEOs, most of whom are from out of state.
Pipeline construction
That the gas companies – in particular EQT and Dominion – are audacious enough to argue that they should be granted eminent domain by the Federal Energy Regulatory Commission (FERC), reveals just how allied political and business interests are in exploiting the mineral resources of The Mountain State. No matter how the companies spin it, the proposed Mountain Valley and Atlantic Coast pipelines are not for public benefit (the standard FERC must apply before granting the companies the right of eminent domain); they are for the companies’ shareholders. Most significantly, the gas that would be shipped through the pipelines will end up in foreign countries, which should be the fact that causes FERC to deny the company’s applications. That, however, would take a miracle.
For those who think pipeline construction is benign and that the companies employ a bunch of good ole’ boys from West Virginia looking out for their neighbors, you need to visit Doddridge, Harrison, Lewis, Ritchie, Tyler and Wetzel counties. Or read this.
Bishop’s response to the pope
A detailed essay will follow relatively soon regarding the insubordination of Bishop Michael Bransfield’s response to the climate change encyclical by Pope Francis. For now, suffice to say that Bransfield, who is the shepherd of West Virginia’s Catholics as head of the Diocese of Wheeling-Charleston, undermined the pope’s message so as to not offend the deep pockets of coal, gas and oil executives. I was told in March by a diocesan official that the bishop wouldn’t support the encyclical because, “Coal, gas and oil are simply too powerful. It wouldn’t be prudent.” Indeed, as you can read here, the bishop is just flat-out distorting the pope’s words.
Lessons from the coal playbook
During the West Virginia Mine Wars of roughly a century ago, the coal companies employed a very effective strategy against coal miners seeking to unionize and achieve better working conditions – they controlled law enforcement. Logan County Sheriff Don Chafin ruled Logan County for the coal companies and exerted influence throughout the southern coalfields. When Sid Hatfield, the police chief of Matewan (but a supporter of the miners), was gunned down on the McDowell County courthouse steps in Welch, W.Va. in 1921, police officials turned a blind eye.
While such blatant corruption is not happening today – at least in the open – a recent donation of $5,000 to the Lewis County Sheriff’s Department by Precision Pipeline, a subcontractor building the Stonewall Gas Gathering pipeline, has some local residents wondering what will happen should conflict erupt between local citizens and the corporations destroying the county’s land. The appearance of impropriety is certainly present.
Conclusion: Civil Disobedience is the answer
In short, our state motto – Montani Semper Liberi (Mountaineers are Always Free) is a joke. The people of this state – whether they will admit it or not – continue to be abused and oppressed by political and business interests. Those appointed to protect the people – such as WVDEP Secretary Huffman – are unable or unwilling to honor their vocations. Additionally, those we should be able to count upon to advocate for and protect us – church leaders and law enforcement – have been compromised.
So, it is up to us. In an upcoming essay, solutions to address West Virginia’s many problems will be offered in detail. For now, an overview of possible solutions include local communities supporting one another economically and socially in new ways; reforming our political system to open ballot access, seting term limits and establish ethical training for potential political leaders; and, ensuring that local officials are prepared for the inevitable disasters that will occur from the fossil fuel mono-economy. We need greater regulation of the energy extraction industry. We need to truly empower people like Secretary Huffman so that he can’t say his hands are tied.
However, I have concluded these actions will not be enough. It is time for nonviolent civil disobedience. That will require training. It will require resolve. Those of us who recall the Civil Rights and Vietnam eras know that civil disobedience works. The achievements of those eras – including voting rights legislation and ending the Vietnam War – would not have happened had people not taken to the streets and subjected themselves to beatings and murder.
As I have put those many miles on my car, I’ve heard so many West Virginians say they want to change our state. The last 60 years of American history, in fact 100 years when the labor movement and women’s suffrage are included, suggest that change can come – but at a great cost. You can fight. You can leave. Either choice is legitimate. But indifference is nothing short of surrender. That is inconsistent with what most West Virginians say they would do. So why do the powerful still control our state?
© The Appalachian Preservation Project, 2015. The Appalachian Chronicle is a publication of the Appalachian Preservation Project. If you find this writing of value, we hope that you will consider support our independent work by becoming a member of the Appalachian Preservation Project. You can learn more here. By doing so, you will be supporting not only this website, but also our other outreaches, programs and partnerships.
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A Pivotal Moment for West Virginia’s Eminent Domain Law
Mountain Valley Pipeline, LLC petitions U.S. Court to access private property for surveys
By Michael M. Barrick
BRDIGEPORT, W.Va. – Mountain Valley Pipeline, LLC (MVP), has sued 103 West Virginians that have refused to allow the company to access their land to survey for the proposed Mountain Valley Pipeline. The company is seeking to construct the 330-mile proposed pipeline from Wetzel County, W.Va., adjacent to the Mason-Dixon line in the north, moving south through the heart of West Virginia until it finally would cross into Pittsylvania County, Va. – after traversing the pristine Greenbrier River and cross some of the tallest peaks of the Allegheny Front.
Mountain Valley Pipeline
Courtesy: FracCheckWV
If approved, the 42” pipeline would transport at least two billion cubic feet of natural gas. MVP is owned by EQT and NextEra Energy Inc. EQT and its partners have yet to submit a formal application with FERC. It is expected to do so later this year. The companies hope to begin construction in late 2016. Construction is estimated to take about two years. The Mountain Valley Pipeline and other pipelines such as the proposed Atlantic Coast Pipeline are the direct result of the fracking boom in West Virginia, Pennsylvania and Ohio.
While environmental and property rights lawyers have been arguing that the use of eminent domain is premature – and hence, illegal – because FERC approval has not yet been granted, Mountain Valley Pipeline, LLC apparently has determined that West Virginia State Code regarding eminent domains grants them the right in advance of FERC approval to survey private property, arguing that the survey results are essential for seeking FERC approval.
Indeed, company officials said so in letters the company sent out to the landowners demanding access to survey their property. EQT Corporate Director of Communication Natalie Cox said, “I cannot emphasize enough, the importance of conducting these survey activities, which are designed to evaluate the proposed pipeline routes currently under consideration and ultimately determine the route that has the least overall impact on the environment, landowners, and cultural and historic resources.” She added, “As referenced in the landowner letters, we rely upon West Virginia Code Section 54-1-1, et seq., to provide us the right to enter land for survey purposes.”
This sentiment as expressed by citizens of southern West Virginia on the Preserve Monroe website may be in jeopardy because of the MVP lawsuit
In the Civil Action (5:15-cv-3858), filed on March 27 in the United States District Court for the Southern District of West Virginia, Mountain Valley Pipeline, LLC, argues, “This is an action for declaratory judgment and injunctive relief against respondents which seeks the right of entry and survey, as permitted by W.Va. Code 54-1-1, et. seq.”
In paragraph 9, the petitioners argue, “There is justiciable controversy between the parties regarding whether MVP is authorized to enter the respondents’ properties pursuant to W.Va. Code 54-1-1, et. seq, to survey the properties to fix the location of a route for a natural gas pipeline.”
Later, in paragraph 82, MVP asserts, “W.Va. Code 54-1-1, et. seq, vests the power of eminent domain in companies such as MVP seeking to construct pipelines for a public use.” Two paragraphs prior, it argues, “While the Natural Gas Act does not expressly outline the procedure for natural gas companies to gain survey access to properties in connection with such pipeline projects, the West Virginia legislature has recognized the importance of pre-construction surveys, vesting private corporations with this authority, where, as here, private property ‘maybe taken or damaged for public use.’”
Is MVP correct? Here is what W.Va. Code 54-1-1 says: “The United States of America, the state of West Virginia, and every corporate body politic heretofore or hereafter created by the constitution or statutes of the state, and every corporation heretofore or hereafter organized under the laws of, or authorized to transact business in, the state, for any purpose of internal improvement for which private property may be taken or damaged for public use as authorized in section two of this article, shall have the right of eminent domain, and may exercise the same to the extent and in the manner provided in this chapter, and subject to the restrictions and limitations provided by law.”
Obviously, contends MVP, that provision is open to interpretation by the courts.
If the company establishes that this provision does grant them eminent domain, then the next question is whether or not surveys of the pipeline project are a legitimate purposes under the law. MVP is clear in referencing the proposed pipeline. “MVP is in the process of surveying properties as part of a project to construct a 300-mile, 42-inch natural gas pipeline through West Virginia.” It concludes, “It is necessary to enter the respondents’ properties to survey to appropriate necessary rights-of-way, obtain a FERC Certificate, and construct the pipeline.”
MVP also references section 54-1-3 of the state code. “As part of its rights of eminent domain, MVP’s right of access for survey is clear as West Virginia Code 54-1-3 specifically vests authority to ‘[a]ny incorporated company or body politic, invested with the power of eminent domain under this chapter, by its officers, servants and agents [to] enter upon the lands for the purpose of examining the same, surveying and laying out the lands, ways and easements which it desires appropriate.’ (emphasis added).”
MVP also claims that further delays will cause it “irreparable harm.”
Essentially, MVP has accurately quoted the West Virginia law guiding the use of eminent domain. The question is whether they have accurately interpreted it. Heretofore, attorneys advising landowners regarding these letters have argued that the gas companies could not exercise their eminent domain rights absent of FERC approval for the pipelines.
We can hope for justice, and trust that the court will rule in favor of the landowners. However, the law is sufficiently vague. And, corporations have received preferential treatment in the federal courts, especially since Citizens United. All of those who believe in individual liberty, property rights and the importance of environmental preservation should monitor this case closely. Furthermore, as has been pointed out by a landowner in Harrison County, W.Va., we should be suspicious of the relationship between FERC and the natural gas industry.
Should the court rule in favor of MVP, it will be a clear call to citizens to realize that elections have consequences. West Virginia’s eminent domain law is not geared towards protecting individual property rights. It is, however, particularly protective of the rights of the energy extraction industry.
We will soon know just how protective.
© Appalachian Preservation Project, LLC, 2015. The Appalachian Chronicle is a publication of the Appalachian Preservation Project. The Appalachian Preservation Project is a social enterprise committed to preserving and protecting Appalachia. If you wish to support our work, please consider becoming a member.
Also, the “Preserving Sacred Appalachia” Earth Day conference is scheduled for April 20-21 in Charleston, W.Va. This is a wonderful opportunity to be part of a community of like-minded preservationists to address the topics covered extensively on this site. Learn about it and register for it here.
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EQT Letter Characterized as ‘Misleading’ and ‘Bullying’
Landowner and environmental advocate question claims made by Mountain Valley Pipeline, LLC attorney
By Michael M. Barrick
WESTON, W.Va. – Kevin Mullooly, a Lewis County landowner and former employee of Pittsburgh-based EQT Corporation, received a letter last week from an attorney representing the company’s Mountain Valley Pipeline (MVP) project. In the letter, Stephen E. Hastings, Counsel for Mountain Valley Pipeline, LLC, references West Virginia Code 54-1-1 to threaten landowners with a lawsuit if they do not provide EQT access to their land by March 9.
The Mountain Valley Pipeline is a project of EQT and NextEra Energy Inc. If approved, the 42” pipeline would transport at least two billion cubic feet of natural gas along a 330-mile route from Wetzel County, W.Va. to Pittsylvania County, Va. EQT and its partners have yet to submit a formal application with FERC. It is expected to do so later this year. The companies hope to begin construction in late 2016. Construction is estimated to take about two years. The MVP and other pipelines such as the proposed Atlantic Coast Pipeline are the direct result of the fracking boom in West Virginia, Pennsylvania and Ohio.
Mullooly is just one of numerous landowners throughout West Virginia to receive the letter according to EQT Corporate Director of Communication Natalie Cox. Cox acknowledged that she did not know how many letters had been sent out, but stated, via email, “I cannot emphasize enough, the importance of conducting these survey activities, which are designed to evaluate the proposed pipeline routes currently under consideration and ultimately determine the route that has the least overall impact on the environment, landowners, and cultural and historic resources.”
Mullooly did not interpret the letter the same way. He said the letter left one of his family members “pretty scared.” He explained, “We don’t want to go to court. I think it is a bullying technique. I worked for EQT. They just want to get us to cave.”
Additionally, Elise Keaton, the Outreach and Education Coordinator for the Greenbrier River Watershed Association (GRWA) questioned the assertions made by Hastings in his letter. During a break at a community meeting in Ireland, W.Va. on Feb. 28, where Keaton was speaking to about 75 landowners about the MVP, she said, “They cite the eminent domain statute. It implies a right they do not have yet.” She added, “That letter is misleading. It is intimidating.” Keaton, who is an attorney licensed to practice in Colorado, continued, “As an attorney, I am offended by it.”
In the letter, Hastings writes, “…the Mountain Valley Pipeline …will be regulated by the Federal Energy Regulatory Commission.” Yet, as both Mullooly and Keaton point out, the Federal Energy Regulatory Commission (FERC) has not yet approved the pipeline.
Hence, we asked Cox, “As you know that process is in the early stages and no approval has been granted. Wouldn’t you consider this phrase misleading?” Cox, responded, “The first sentence of the letter reads – ‘Mountain Valley Pipeline, LLC wishes to resolve your concerns regarding the required land survey activities for the proposed construction of the Mountain Valley Pipeline (MVP), which will be regulated by the Federal Energy Regulatory Commission (FERC)’ – and the intent of that sentence, in its entirety, is to educate or inform the recipient that the proposed Mountain Valley Pipeline would be a natural gas transportation system managed by the Federal Energy Regulatory Commission. The sentence to which you are referring was not written to be misleading, and when reading or referencing the sentence in its entirety, the pipeline is referred to as being ‘proposed,’ which does not imply certainty of the pipeline project.”
Furthermore, Section 54-1-3 of the West Virginia Code states that access to property cannot be exercised under eminent domain without the landowner’s consent “…until it shall have obtained the right so to do in the manner provided in this chapter.” So, we asked “What federal or state law/statute/code are you relying upon to assert the right to access the land?” Cox replied, “As referenced in the landowner letters, we rely upon West Virginia Code Section 54-1-1, et seq., to provide us the right to enter land for survey purposes.”
Hastings concludes the letter, “If we have not received consent to access your property for the surveys, appraisals, tests and studies requested in this letter by March 9, 2015, legal action will likely be taken in order to obtain the necessary access. We hope this will not be required and we look forward to working with you.” In response, we asked Cox, “On what federal or state law/statute/code are you relying to threaten legal action?” and “What sort of legal action do you contemplate?” She replied, “As referenced in the landowner letters, we rely upon West Virginia Code Section 54-1-1, et seq., to provide us the right to enter land for survey purposes. While it is important for us to continue talking and working with our landowners, only as a last resort would we file a declaratory judgment and injunction matter to enforce our rights.”
Mullooly not only takes issue with the letter. He also shared that previous experiences with EQT make him hesitant to trust them. He said that a few years ago, the company sprayed herbicide from a helicopter over another pipeline on his property, killing about 100 trees. EQT refuses to compensate him for his losses, Mullooly said. “This is a 4,000 foot section. And 2,000 feet of it is over a fence line. As these trees die, they are going to fall and damage that fence. That is no worry to them either.” He added, “They are just not living up to their end of the agreement.”
Mullooly concluded, “I know how they fight. They will fight even when somebody doesn’t want to fight. They will intimidate.” He said that he and his family are considering contacting an attorney about the letter.
© Appalachian Preservation Project, LLC, 2015. The Appalachian Chronicle is a publication of the Appalachian Preservation Project. The Appalachian Preservation Project is a social enterprise committed to preserving and protecting Appalachia.
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