Bacon's Rebellion

Democracy Thrives in Sunlight

Taking One More Brick from the Green Wall

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sherlockj
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Mountain Valley Pipeline. Image source: The Virginia Mercury.

by James C. Sherlock

The green wall preventing businesses from operating at some level of certainty when and if their development proposals will be approved is missing a brick today.

The days of a Virginia State Air Pollution Control Board and State Water Control Board overruling the findings of the Virginia Department of Environmental Quality in permitting matters are over.

SB 657 passed the House and is on its way to the Governor.

“Air Pollution Control Board and State Water Control Board; transfer of authority to Department of Environmental Quality. Limits the authority of the Air Pollution Control Board and the State Water Control Board to issuance of regulations and transfers the Boards’ existing authority to issue permits and orders to the Department of Environmental Quality. The bill provides procedures for public comment on pending controversial permits, defined in the bill, and on regulatory changes necessary to implement the provisions of the bill. Air Pollution Control Board and State Water Control Board; transfer of authority to Department of Environmental Quality. Limits the authority of the Air Pollution Control Board and the State Water Control Board to issuance of regulations and transfers the Boards’ existing authority to issue permits and orders to the Department of Environmental Quality. The bill provides procedures for public comment on pending controversial permits, defined in the bill, and on regulatory changes necessary to implement the provisions of the bill.”

Those two boards earned their dismissal from important permits and orders matters. The last straws were overruling the Mountain Valley Pipeline and water  permits for chicken farms on the Eastern Shore.

Virginia was nearly alone in this add-on bureaucratic process.

It exists no more.

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Comments

13 responses to “Taking One More Brick from the Green Wall”

  1. Nancy Naive Avatar
    Nancy Naive

    Don’t know why anyone would object to such a beautiful eyesore. All that’s needed is Thomas Jefferson’s permission to cross his forest. Hey! Maybe a serpentine brick pipeline?

  2. Moderate Avatar
    Moderate

    As a property owner who has fought for control over and protection of my family’s over 100 year old business and for the right to pass it to the next generation in as good or better condition than my generation got it in, I beg to differ. This change is dead wrong. Here’s what I told legislators yesterday:

    The most frustrating experience, and one I continue to live through, is that related to the natural gas pipelines. Citizen landowner rights are almost nonexistent and the industry is advantaged every step of the way. You’re being asked to make it even worse by removing authority from the citizen air and water boards via SB657. You’re being told by industry that they are stacked with zealots or worse and they do not listen to DEQ. None of that is true.

    Governors appoint members of these boards. In my experience, the majority come from business backgrounds. No one who holds extreme positions on the environment makes it to these seats. The one permit that has not been approved was done because DEQ did not consider Virginia law. If it had been approved it would have been immediately appealed to the courts where it would have likely been struck down. Governor Northam supported the pipelines; he never helped or even heard from landowners; he avoided us at all costs. It was not a “stacked” board that made this decision.

    DEQ is the entity that ignores landowner and community concerns, and the law. Its leadership under both political parties supports businesses and works with them to trip up and take advantage of landowners. In a political environment where there is so much emphasis on giving the people decision making authority and not depending upon opaque state agencies led by unelected people, it makes no sense to take away authority of citizen boards.

    The industry has trumped up its complaints about a process in which its advantages are mammoth. There is no level playing field between landowners and the oil and gas industry. Please do not make the situation worse. Vote NO on SB657.

    1. James C. Sherlock Avatar
      James C. Sherlock

      If “the industry is advantaged every step of the way”, why did the Atlantic Coast and Mountain Valley pipelines fail?

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        According to your earlier assessment, they failed because of the Fourth Circuit of Appeals, not the state regulatory boards. https://www.baconsrebellion.com/infrastructure-bill-meet-richmonds-united-states-court-of-appeals-for-the-fourth-circuit/

        1. James C. Sherlock Avatar
          James C. Sherlock

          That and the 4th Circuit.

          1. Moderate Avatar
            Moderate

            The real reason for the cancellation was the absence of long term verifiable use for the infrastructure. IF it were used, it would have been for owner benefit and it would have soon become a stranded asset. The cost was always too high for justification without a guarantee that rate payers would pay the cost plus a hefty return. Economics.

  3. Nancy Naive Avatar
    Nancy Naive

    Don’t know why anyone would object to such a beautiful eyesore. All that’s needed is Thomas Jefferson’s permission to cross his forest. Hey! Maybe a serpentine brick pipeline?

  4. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    I read about this bill with interest. This could cut both ways. There could come a time when conservatives might like to have a Air Pollution Control Board or a State Water Control Board, with a majority appointed by a former governor, that could overrule the decisions of the agency staffs in the granting of permits.

    Also, a permit issued or denied by the staff can still be challenged in state and federal courts.

    In the end, I wonder how much difference it will make. I don’t know for sure, but my impression is that, in the vast majority of cases, those boards followed the recommendations of the agency staff.

    1. James C. Sherlock Avatar
      James C. Sherlock

      First, I don’t think it cuts both ways. As I said, it is one less blocking activity, one less delay or roadblock to consider when making a business decision.

      Second, if they had followed the recommendations of DEQ on the Mountain Valley Pipeline and the chicken farms, they would still have the authority they just lost.

      Third, the Supreme Court has concluded as late as 2018 that Congress possesses largely “plenary” authority to determine what sorts of cases the federal courts may and may not hear. It is called jurisdiction stripping. A bill to authorize, for example, the Atlantic Coast Pipeline as a matter of national security, would remove the law from judicial consideration if the bill so stated.

      The supremacy clause would then preclude actions in state courts.

      1. Moderate Avatar
        Moderate

        I hope that your heritage property is never chosen for the path of such infrastructure. Landowners currently have almost NO RIGHTS and there is nothing in the process to even mildly encourage companies to consider or work with landowners. They threaten eminent domain from the outset and let you know that THEY are in charge, you don’t matter, and they WILL get their way.

        Your ideas about how to give the businesses certainty mean some other businesses – not just NIMBY homeowners and leftists – will be adversely affected.

        Making such extreme changes after boards followed DEQ to the nth degree for decades, except in the recent couple instances, is uncalled for and I am sure Virginia will live to regret it.

        I sincerely hope you never have the face the things so many of us have and that you don’t lose the time, energy, and money required to attempt to stand up for your basic right to use your own land as you want to seek your American Dream without encroachment by others who believe it’s their right to make money on your back with no consideration of your business.

        1. James C. Sherlock Avatar
          James C. Sherlock

          I truly am sorry.

          You clearly have a dog in the fight. The federal processes all have historical properties clauses. But there is a valid reason for eminent domain. If NIMBY prevails, and lawsuits are never-ending, nothing will ever get built. Everything is in somebody’s back yard.

          Now you are likely to tell me that eminent domain is used for all kinds of sketchy projects. I agree. That is why I say that projects should be subject to national security designations before they are subject to jurisdiction stripping.

          The Supreme Court has concluded as late as 2018 that Congress possesses largely “plenary” authority to determine what sorts of cases the federal courts may and may not hear.

          Jurisdiction stripping need not preclude federal agency reviews that include historical properties protections.

          But a bill to authorize, for example, the Atlantic Coast Pipeline as a matter of national security – exporting LNG to NATO allies and providing natural gas to the frontline military facilities in Hampton Roads – would remove the law from judicial consideration if the bill so stated. The supremacy clause would then preclude actions in state courts.

          1. Moderate Avatar
            Moderate

            It will only be a fair system if landowner use of landowner property is fully considered in the process. As long as companies are supported in the belief that their use of property is always and automatically superior to landowner use, the problems will continue. No one has motivation to develop a business or anything else with the expectation that IF it is needed for a public use, it will automatically be taken. That’s effectively what is happening today. We couldn’t get the company to move their path within our property, with agreement from the adjoining owner who would also benefit from the move.

            Now that the project is cancelled, they still own the easement, and thus have superior authority over our land still. It was eminent domain. We spent tens of thousands of dollars, hours, and much mental anguish dealing with a project from which we would never have benefited in any way. They indicate they have no intention of returning easements. This is patently unfair.

            As for why the pipeline was cancelled, we don’t believe there was ever any measurable need. We know of no planned use for the gas and it was all based on agreements the company held with itself.

            There are times such infrastructure is needed and landowner land is needed. In those cases, a fair process requires consideration of the landowner and does more than provide an appearance of compensating the landowner for loss. In fact, if there are earnings long term, they should be shared. Also, landowners need better safety assurances based on our losses, not the invading business’. Landowners must be able to stop paying local property taxes on land over which another entity has superior authority.

            Our society and our economy cannot afford for us to continue with a system that allows one business to so thoroughly take advantage of another, though smaller. Early and sincere attempts to seek win/win situations are needed. We can no longer accept the assumption that one business can begin the discussion with “and if you don’t agree, we’ll take it through eminent domain.”

            Our country was established with the idea that people can work hard and achieve goals. The current system makes a mockery of our country’s basic values.

            Also, there is no historical protection for 100+ year old property. Our original 1804 farmhouse, out buildings, and every other building on our property were within the incineration zone of the planned pipeline and the company refused to move the project to better protect them or our lives, much less our daily business activities which it bisected for 1.1 mile. We were told there is nothing “unique” about our property. I know of few other working businesses with so many over 200 year old original buildings but understand society sees no value there.

  5. kls Avatar
    kls

    I’m sure Leftist Liberals don’t use any energy except that which is produced on their own property and don’t eat any food except that which also is produced on their property as well.

    It’s hateful ‘geoism’ like this that keeps ‘people without’ from having all that the Left enjoys at the expense of others [those who live near energy and food production and supply routes]. Provide affordable energy and food to all, no matter where they live. But we continually see that is too much ‘coexisting’ for some….not to mention how stopping pipelines and drilling helps Putin fund his army to kill babies in Ukraine.

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