Michael L. Krancer, Frederick M. Lowther, and Margaret Anne Hill
As we have noted in our prior blog posts on the Constitution Pipeline and Millennium Valley Lateral projects, §401 of the Federal Clean Water Act has become a focal point in the growing efforts by States to exercise dominant authority over FERC jurisdictional pipelines. This time, the West Virginia Department of Environmental Protection (“WVDEP”) has taken the unprecedented step of actually revoking a §401 certification it had granted in March 2017 and then reaffirmed in May. This action by WVDEP may be the final straw in State authority to review FERC jurisdictional pipelines as FERC and the Congress will be energized to react to the oversteps by New York in Millennium and now West Virginia in Mountain Valley.
The facts in the Mountain Valley case are quite egregious. WVDEP, with a public press release, approved the §401 certification. Then, just two months later, it denied requests for reconsideration by Sierra Club and others of its decision to grant the certification. Sierra Club and other NGOs, conceding that the WVDEP decision was final, appealed the certification to the Fourth Circuit Court of Appeals just last month.
The grounds for the appeal were pro forma, citing the usual “abuse of discretion” allegation against WVDEP. The appeal focused on supposed inadequate consideration of its Clean Water Act anti-degradation policy, blasting effects, and failure to respond to public comments. All of these factors had been commented on before, during the extensive State of West Virginia process and were considered by WVDEP in first granting the §401 certification and then reaffirming its decision.
In a startling turn of events, on September 7, 2017, WVDEP issued a one-paragraph letter (this time without a press release) directed not to the project sponsor, EQT, or to FERC, but to the Army Corps of Engineers, supposedly vacating and remanding its prior two decisions upholding the §401 certification. The letter provides no rationale at all for WVDEP’s about-face but merely states that WVDEP “hereby vacates and remands” its previous two decisions and that “this decision will allow the agency to reevaluate the complete application to determine whether the State’s certification is in compliance with Section 401 of the federal Clean Water Act.”
Unlike the Constitution and Millennium Valley Lateral projects, Mountain Valley Pipeline has not yet been certificated by the FERC but the principles are the same: States vetoing FERC jurisdictional pipelines based not on the law under the Clean Water Act or facts and science, but on politics and pressure by ideological anti-natural gas NGOs.
It is questionable whether the WVDEP decision to “vacate” is legally valid. How can a state, without rationale or explanation, simply “undo” a certification that it granted after copious public input and then reaffirmed just a few months before? There is no precedent known to the authors for the action taken by the WVDEP. The courts and the FERC will undoubtedly be barraged by legal briefs and arguments on all sides of that question.
But there is no doubt that the WVDEP action of September 7 raises, not just legal questions, but overarching policy questions. Here we have yet another case of a State using the federal Clean Water Act §401 certification process as a tactical weapon to thwart a federal jurisdictional pipeline. The very balance of State-Federal regulation of interstate FERC jurisdictional pipelines established by Federal law has been attacked by this putative decision by WVDEP—as it just was in the Millennium case in New York.
The Clean Water Act was not intended by the Congress to give the States the right to treat §401 certifications like political footballs as New York and West Virginia have done in successive weeks. These two actions show beyond peradventure that these two States have gone well beyond responsibly judging the consistency of a federally-regulated interstate project against the State’s federally-approved water quality standards.
We noted before that the New York Millennium action would be a catalyst for FERC and/or Congressional action to stem this overreach by States. This extraordinary action by WVDEP cements and establishes that need even further. As we noted in our prior blog posts (Constitution Pipeline: The 2d Circuit Reaffirms a State’s Right to Veto a FERC-Approved Interstate Pipeline Project and Millennium’s Valley Lateral Project: Yet Another New York State Veto Under the Clean Water Act), there is now more than ever a clarion, and very justified, call for a fresh look at the Clean Water Act and, in the opinion of the authors, for FERC action and a legislative amendment which restores the proper balance between Federal and State authority over interstate pipeline projects, as well as the proper use of the §401 certification process.