When public agencies and boards made crucial decisions about the Mountain Valley Pipeline, the outcome was often influenced by a pro-industry panel called the Federal Energy Regulatory Commission.
That, at least, has been the mantra of opponents to the natural gas pipeline being built through the New River and Roanoke valleys.
But shortly after the U.S. Forest Service allowed Mountain Valley to pass through the Jefferson National Forest in 2017, one of the agency’s regional planning directors who was involved in the process reached the same conclusion.
The Forest Service “was not in the driver’s seat” when it came to making a final decision, Peter Gaulke wrote in an email to colleagues. FERC was.
“It is fair to say there were pains of adjustment as we tried to merge our USFS way of business with the FERC way of business,” Gaulke wrote in a Nov. 28, 2017, review of the process.
“This was not easy and still has a level of discomfort for the Forest and the Regional Office,” the email stated.
One of the key issues was whether building the 303-mile interstate pipeline — the largest such project ever proposed in the Jefferson National Forest — would produce more erosion and sedimentation than the public woodlands could bear.
Gaulke’s email, provided to The Roanoke Times in response to a Freedom of Information Act request, is “shocking and eye-opening,” said Rupert Cutler of Roanoke, who oversaw the Forest Service as assistant secretary of agriculture from 1977 to 1980.
“It proves that the Forest Service felt emasculated and victimized by the FERC-dominated MVP decision-making process,” Cutler said.
Eight months after Gaulke raised his concerns, the 4th U.S. Circuit Court of Appeals threw out Mountain Valley’s permit to cross 3.5 miles of the national forest. Siding with the Sierra Club and other environmental groups, the court found that the Forest Service was too accepting of the company’s assurances that erosion would not be a major problem.
“American citizens understandably place their trust in the Forest Service to protect and preserve this country’s forests, and they deserve more than silent acquiescence to a pipeline company’s justification for upending large swaths of national forest lands,” Judge Stephanie Thacker wrote in the opinion.
The 4th Circuit ordered the Forest Service to reconsider its permit.
Two years later, in September, the Forest Service released a draft supplemental environmental impact statement. The agency is accepting public comments on the document through Nov. 9. A decision is expected by the end of the year on what may be the final approval needed for Mountain Valley to complete the pipeline.
‘FERC is foreign’
Friday the 13th in October 2017 was perhaps the most unlucky day for those who had been fighting Mountain Valley through a complex regulatory process.
Late on that day, FERC issued what’s called a certificate of public convenience and necessity. In a 2-1 vote, the commission found that there was adequate demand for the natural gas to be drilled from shale formations and shipped from northern West Virginia to southside Virginia, then on to markets along the East Coast via other pipelines.
Additional approvals were required, including a water quality certification from the Virginia State Water Control Board, permits from the U.S. Army Corps of Engineers for the pipeline to cross nearly 1,000 streams and wetlands, and approval to pass through the national forest.
But under federal law, FERC was the lead agency in the Forest Service’s process.
That meant the Forest Service was forced to adhere to FERC timelines, regulations, administrative protocols and public involvement approaches, Gaulke wrote in his 2017 email.
“It is no doubt an understatement to say that FERC’s processes differ dramatically from how the USFS runs ... its decision making,” he wrote. “FERC is foreign.”
One area that proved troublesome was an objection process, in which the Forest Service responded to questions raised by outside parties such as landowners along the pipeline route and environmental organizations.
“Safeguarding the natural resources was difficult and clumsy” as various procedures were merged, Gaulke wrote. In the end, FERC issued its certificate to Mountain Valley, addressing many of the issues the Forest Service was still struggling to resolve.
That left the Forest Service with two choices: “Be inconsistent with FERC and basically pit one GOV agency’s analysis against another GOV agency’s analysis,” the email stated, or “present a consistent ‘one Gov approach’ to the project.”
Three days later, the Forest Service announced its decision to amend a management plan in order to allow pipeline construction. That in turn led the Bureau of Land Management to grant a right of way through the forest.
With the 4th Circuit’s reversal in 2018, the 3.5-mile segment of the forest in Giles and Montgomery counties and Monroe County, West Virginia — along with a buffer zone of about 25 miles on adjacent land — was declared off-limits for construction until new permits were obtained.
The second approval process is different, the Forest Service recently said in written responses to questions from The Roanoke Times. Unlike what happened three years ago, it is now the lead agency.
That means the “regulatory environment upon which the Agency proposes to make its decision is different from 2017,” Forest Service spokeswoman Nadine Siak wrote in an email.
Under federal laws and regulations, the role of lead agency shifts from FERC to the Forest Service — which then supplements the commission’s earlier environmental impact study — if there are substantial changes related to environmental concerns or significant new circumstances. The 4th Circuit’s decision met that standard.
When a final decision is made later this year, Siak said, the Forest Service will act independently of the FERC certificate issued in 2017.
A spokeswoman for the commission declined to comment for this story.
Appalachian Trail affected
Plans call for the pipeline to enter the Jefferson National Forest in West Virginia. It would then run into the Appalachian Trail, which follows the ridgeline of Peters Mountain close to the Virginia state line.
Mountain Valley intends to bore 60 feet under the trail to create a tunnel for the 42-inch diameter pipe.
Concerned about the impact to a scenic wilderness setting, the Roanoke Appalachian Trail Club and others in 2017 submitted public comments to FERC, which was in the process of preparing an environmental impact statement for the entire project.
Diana Christopulos, a past president of the trail club, said many questions went unanswered.
“They basically blew a lot of stuff off,” she said of FERC.
In conversations with staff at the Roanoke-based headquarters for the national forest, she learned they were equally frustrated.
“When the pipeline companies disagreed with us, they would go directly to the White House,” Christopulos said. And the way she sees it, FERC — whose members are appointed by the president — was Mountain Valley’s ally.
“It’s not the Forest Service that needs overhauling, it’s FERC,” Christopulos said. “FERC sees its role as an agency that serves a responsibility to get these pipelines built.”
Critics say FERC’s sweeping authority has influenced decisions by other agencies, such as when Virginia’s State Water Control Board reversed direction on a proposal to revoke Mountain Valley’s water quality certification.
A study by the Analysis Group, a consulting firm with offices in North America, Europe and Asia, found that FERC approved more than 400 applications for natural gas pipelines from 1999 to 2017. Only two applications were denied, the study found.
Such a pro-industry stance relegated the Forest Service to a relatively powerless subsidiary role, according to Cutler.
“I know how it feels to be rolled over like this by higher authority,” said the Roanoke environmental advocate, who served as assistant secretary for natural resources and the environment for the U.S Department of Agriculture during President Jimmy Carter’s administration.
Cutler endured decisions he disagreed with, such as increased logging in national forests to reduce the cost of housing and the rejection of a proposed wilderness area in California supported by the famous nature photographer Ansel Adams.
“So it goes as a political appointee and one of the president’s lieutenants,” Cutler said. “You say, ‘Yes, sir.’”
A new pipeline plan
Since the 4th Circuit’s ruling in 2018, the Forest Service has been working on new rules for Mountain Valley.
A draft report released in September agrees with a decision that FERC made earlier: The resource management plan for the Jefferson National Forest will not allow such a large construction project.
So the 200-plus-page document recommends 11 amendments — changing standards for tree-cutting, revegetation and the impact on soils — to make the forest’s plan conform to Mountain Valley’s blueprint.
Such changes are “not routine or standard,” Siak wrote in her email. But, she added, “it is not uncommon for large-scale projects, regardless of the proposal purpose & need, to require a plan amendment.”
Short-term effects of construction on forest soils would be “minor to moderate,” according to the environmental impact statement, with the impact decreasing to minor once the project is completed.
“The Forest Service takes its motto of ‘Caring for the Land and Serving People’ very seriously,” Siak wrote. Over the past three years, the agency has “gained a valuable and much better understanding of the laws and regulations ... and how to more smoothly process applications,” the email stated.
Mountain Valley spokeswoman Natalie Cox said the company has worked closely with the Forest Service and appreciates its “rigorous evaluation of MVP’s sedimentation analysis.”
There are about a dozen natural gas pipelines that pass through the Jefferson and George Washington national forests. None carry as much gas under high pressure as Mountain Valley would.
Although she is still evaluating the proposed plan, Christopulos said her reading so far indicates that many of the Forest Service’s findings mirror FERC’s conclusions in 2017.
And the forest has not fared well, even though construction was stopped after Mountain Valley cut a 125-foot-wide right of way through the woods and began clearing land on steep mountainsides.
Monitoring by a private company hired by the Forest Service found six cases of non-compliance with erosion control standards in September 2018. In a report filed with FERC, the company noted many more failures of silt fences and other erosion control measures, which caused heavy sedimentation in streams and muddy runoff into the forest.
Mountain Valley has had even more problems project-wide. Last year, it paid $2.15 million to settle a lawsuit filed by Virginia regulators that cited more than 300 cases of non-compliance.
“The Forest Service’s motto may be ‘Caring for the Land and Serving People,’ but in the case of MVP, it’s obvious that they’re getting political pressure to trash the land and serve polluting corporations,” read a statement from Nathan Matthews, a senior attorney for the Sierra Club who was involved in the legal challenge that led to the permit’s reversal. He made his comments about being told about Gaulke’s email.
“We knew all along that there was no reason to build the fracked gas Mountain Valley Pipeline, other than to line the pockets of their CEOs,” he said, “and that’s even more clear now.”