Two Months After Judge Ordered Them Down, Tree-Sitters Still Block Mountain Valley Pipeline

As 2020 gave way to a new year, and Donald Trump turned the White House over to Joe Biden, tree-sitters in western Virginia held their position against construction of the interstate Mountain Valley Pipeline.

Activists have blocked the pipeline in a mountain hollow just outside Elliston, Virginia, since fall of 2018. A judge ordered them down in November — but more than two months later, tree-sitters remain in place. And they’re not alone.

Mason Adams/Inside Appalachia
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A look at the Yellow Finch tree-sits, still occupied by protesters despite a judge’s order.

“There’s all kinds of like, local youth organizers that would come up to this space,” said a tree sitter known as Acre. “They clean up around the stream and read speeches and make banners. There’s been all kinds of local folks that have written letters to us, and stood under the trees and read them.”

Acre said that local support has kept them in the treetops through the winter months, even after the judge’s order. Like other activists who’ve occupied the blockade known as Yellow Finch — named for the dirt road that runs through the hollow just below the tree-sits — Acre uses non-binary gender pronouns and declined to reveal their real name.

“Using a pseudonym lets you do cool stuff that you wouldn’t be able to do with the same amount of integrity with the real name,” Acre said.

That includes writing posts that are published on the Facebook page of Appalachians Against Pipelines, which functions as the public face of the direct-action campaign against the Mountain Valley Pipeline.

“I don’t have to write everything,” Acre said. “I don’t always have to be the same person. There can be other people signing [posts as] Acre. If people can just walk up here like this, you know, you could be Acre, for all you know.”

The Mountain Valley Pipeline, or MVP, was announced in 2014 and approved by the federal government in 2017, but it’s still incomplete. Now, a shift in White House administrations and accompanying change on the Federal Energy Regulatory Commission (FERC) signals a new phase in the fight.

In mid-January, FERC deadlocked on — and therefore denied — a request by MVP to bore beneath waterways and wetlands along 77 miles of pipeline route in West Virginia. With one of the FERC commissioners in opposition to this process ascending to the commission’s chairmanship, some analysts see further obstacles in MVP’s future.

The pipeline was originally supposed to be in service by 2018, and its cost has gone up from a projected $3.3 billion when it was announced, to nearly $6 billion today. The pipeline did not respond to requests for comment, but its website reports that construction is 92% complete. Still, it remains unfinished — in part because of activists like Acre, who have put their bodies in the pipeline’s way.

Mason Adams/Inside Appalachia
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Hand-drawn art can still be seen on boards among the remnants of the former Yellow Finch support camp.

Tree-sits first went up against MVP in 2018, on the Virginia-West Virginia state line. Others followed, but all were forced down after a few months. Then, that fall, Yellow Finch quietly went up at a more defensible site, in a steep hollow near the south fork of the Roanoke River. It became a destination for pipeline fighters across the East Coast and the Midwest. They came from all kinds of backgrounds, too: Black Lives Matter, criminal justice reform, mutual aid, and fights against tar sands extraction, fracking, and other pipelines.

The Yellow Finch encampment became a hub for activism, not just against the pipeline but also for jail reform, mutual aid and other efforts. Its relatively accessible location made it easy for visitors to find and locals to plug in, while the steep slopes around the tree-sits made it difficult for law enforcement and pipeline security to remove.

The topography around the tree-sits underscore the activists’ argument against the pipeline. On one side of the hollow, the land has been cleared down to mineral soil, and it looks like pipeline workers are using a giant sheet of plastic or some other material to stabilize the ground. On the other side — where the tree-sits are located — the slope is still forested.

After the judge’s order in November, the activists took down the support camp. In late December, the pallets they used as a streamside barricade lay in piles, and the bunkhouse they slept in had been dismantled.

Mason Adams/Inside Appalachia
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The remnants of the support camp at Yellow Finch, which was removed by activists in November

But a skeleton crew of tree-sitters stayed behind, living 40 feet off the ground on a series of platforms connected by rope lines and covered with tarps. Acre said they’ve got a pile of sleeping bags to keep them warm, but that the weather’s been fairly mild so far this winter. And, it turns out that weather many of us see as an annoyance is crucial for Acre’s ability to stay in the trees.

“The water I drink is all rainwater, so I’m really grateful when it rains,” Acre said. “And then my solar panel charges my phone. So when it rains, I have to take my face away from a phone and read a book, and I get more water from my water-catchment system. In some ways, my setup is reliant on the elements and keeps me in tune with with the daylight and with the weather.”

Acre’s presence in the trees feels like a last stand against the Mountain Valley Pipeline. And it may signal the end of the Yellow Finch encampment. However, the tree-sits, while a focal point for news coverage of the pipeline fight, represent just one front in a long-running, multi-pronged campaign that also includes legal, regulatory and political action. Environmental groups are fighting the pipeline in court, and an army of trained volunteers monitor the pipeline for erosion and other environmental violations.

While the pipeline continues to make progress toward removing its remaining legal and regulatory obstacles, including receiving an important approval from the U.S. Forest Service in January, its fate remains unclear.

In the meantime, Acre and other tree-sitters remain, continuing to hold their space and block the pipeline.

EPA Changes Rule To Limit States' Ability To Oppose Pipelines, Energy Projects

Federal environmental regulators finalized a rule Monday that reduces the time states have to approve federal permits for energy projects. 

The Environmental Protection Agency finalized changes to a portion of the Clean Water Act called Section 401.

For decades, it has given states and tribes the power to review new projects to make sure they don’t harm local waterways. Under the law, states also had the power to withhold approval and set special conditions. In West Virginia, for example, the rule allowed environmental regulators to revoke and then reissue a permit for the Mountain Valley Pipeline. Section 401 has been used by some states, like New York, to prevent new pipelines from being built.

In a press release, the EPA said some states abused the law, using it to stall energy projects, and the new rule, which sets a one-year time limit for states to approve or reject projects, is returning the law to its original intention.

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said EPA Administrator Andrew Wheeler.

Under the adjusted rule, states are also now only able to consider water quality impacts, not a project’s impacts on things like climate change.

Environmental groups opposed the rule change.

In a statement, Jon Devine, director of federal water policy at the Natural Resources Defense Council said the rule was a mistake and infringes on states’ rights.  

“Enforcing state and federal laws is essential to protecting critical lakes, streams, and wetlands from harmful pollutants and other threats,” he said. “But the Trump administration’s rule guts states’ and tribes’ authority to safeguard their waters, allowing it to ram through pipelines and other projects that can decimate vital water resources.”

 

Atlantic Coast Pipeline Appalachian Trail Case Heads to Supreme Court

A battle over the Atlantic Coast Pipeline is headed to the U.S. Supreme Court Monday, Feb. 24. Oral arguments are scheduled in the case U.S. Forest Service v. Cowpasture River Preservation Association for Monday, Feb. 24.

At the heart of the case is whether the U.S. Forest Service has the authority to grant the Atlantic Coast Pipeline a permit to cross under the Appalachian Trail, federal land, that is a unit of the National Park Service. 

The ruling could have big impacts for the route of the 600-mile natural gas project, which begins in West Virginia and crosses through Virginia and North Carolina. 

In December 2018, the Fourth U.S. Circuit Court of Appeals ruled that the U.S. Forest Service improperly granted the pipeline a permit to cross under the Appalachian Trail, a popular 2,200-mile hiking route that goes from Georgia to Maine. 

Ahead of the case being argued in the high court, both the pipeline’s supporters and opponents say they are cautiously optimistic. 

Federal Barrier? 

“We think that the Fourth Circuit clearly erred,” said Republican West Virginia Attorney General Patrick Morrisey, speaking at a recent press conference at the capitol in Charleston. Morrisey led a group of 18 state attorneys general who filed an amicus brief urging the Supreme Court to overturn the lower court’s ruling. 

“You cannot set up literally an impenetrable federal barrier to economic development, not only under our constitution or a law, but under the statutes, the Mineral Leasing Act,” he said.

Pipeline spokesperson Ann Nallo said more than 50 other pipelines cross under the Appalachian Trail. In court briefs, pipeline developer Dominion Energy argues if the lower court’s ruling is upheld, that would upend decades of precedent and permits. 

“So, where the Atlantic Coast Pipeline is currently routed, is underneath one-tenth of a mile stretch about 600 feet below the surface of the Appalachian Trail,” she said. “If it’s now going to be understood that it’s National Park Service land, where a pipeline can’t cross without congressional approval, that essentially turns it into a 2,200-mile barrier.”

Other Obstacles

But environmental groups say this case is different. Greg Buppert is an attorney with the Southern Environmental Law Center, one of the groups that will defend the lower court’s decision. 

“Yes, to be sure other pipelines cross the Appalachian Trail. What’s different here is that the crossing is proposed on federal land,” he said. “There’s never been a new right of way for a pipeline on federal land in the last 50 years.” 

Buppert said even if the Supreme Court sides with the Atlantic Coast Pipeline in this case, the project’s future remains murky. 

“If you step back away from the just the Cow Pasture case and the Appalachian Trail crossing issue — which I think is just a symptom of the route Dominion chose — I think this project has serious problems and obstacles ahead of it,” he said. 

Several of the project’s federal permits are in flux and other lawsuits are ongoing. Project developer Dominion Energy says the project has ballooned in cost to $8 billion. The Supreme Court is expected to hand down its ruling in May or June of this year.

Regulators Put Most Mountain Valley Construction On Hold

Federal regulators are putting a temporary stop to most construction on the Mountain Valley Pipeline amid litigation over key project permits.

An official with the Federal Energy Regulatory Commission told Mountain Valley on Tuesday that it must cease construction activity along all portions of the project immediately, with the exception of “restoration and stabilization” in certain areas.

The move comes after the 4th U.S. Circuit Court of Appeals on Friday issued a stay of permits from the U.S. Fish and Wildlife Service while it reviews a lawsuit filed by environmental groups.

Spokeswoman Natalie Cox says the total project work is approximately 90% done and the developers are committed to its completion. She says much of the construction work was already on hold or winding down for the winter season.
 

1 Dead, 5 Injured, 7 Missing in Ky. Pipeline Explosion

A regional gas pipeline ruptured early Thursday in Kentucky, causing a massive explosion that killed one person, hospitalized five others, destroyed railroad tracks and forced the evacuation of a nearby mobile home park, authorities said.

Some structures were completely consumed by the blaze, and five to seven people were unaccounted for when firefighters extinguished the flames hours later, Lincoln County Emergency Management Director Don Gilliam said.

“The part of the area that has been compromised, there’s just nothing left,” Gilliam said when asked whether residents might return to their trailer homes. “The residences that are still standing or damaged will be accessible. There doesn’t really look like there’s any in-between back there. They’re either destroyed or they’re still standing.”

The 30-inch wide pipeline moves natural gas under such high pressure that the flames reached about 300 feet in the air and could be seen throughout the county, he said.

The explosion around 1 a.m. was so huge that it showed up on radar, according to a tweet from WKYT-TV meteorologist Chris Bailey. It took hours for firefighters to douse the flames, with trucks repeatedly refilling their tanks and returning to the scene.

Nearby residents said they were awakened by the initial blast.

Naomi Hayes told The Associated Press that she lives within a mile of the scene and felt her home shake, then saw light outside the window.

“It was so bright that it was like daylight outside, just with an orange tint,” she said.

“When we went out the door, we could see the flames. They were so high and so bright … and the noise was insane,” she said about the burning fire. “It was a roar, like a monster roar. We had to yell to talk to each other. That’s how deafening it was.”

Another nearby resident, Sue Routin, told WLEX-TV that the blast shook her home too.

“It woke us up and it was just a big roar and it was fire going up into the sky as far as you could see,” she said. “Our windows were shaking really bad, and our doors and the ground, you could hear the ground just moving and tumbling and rolling. And then we got to feeling the heat from the fire, so we got in our vehicle and took off to get away from it.”

Emergency managers said the rupture involved the Texas Eastern Transmission pipeline, which is owned and operated by Enbridge. The pipeline stretches more than 9,000 miles, from the Mexican border in Texas to New York City. A statement from the company based in Calgary, Canada, said “Enbridge is aware of and is responding to a rupture on the Texas Eastern system in Lincoln County.”

The blast also damaged railroad tracks, forcing 31 trains to back up overnight, authorities said.

Some 75 people in the Indian Camp trailer park in the Moreland community were evacuated to the New Hope Baptist Church in Stanford. Gilliam encouraged anyone who fled the scene and hasn’t been accounted for to check in at the church. Authorities also urged people gathering for the multistate 127 Yard Sale to stay away as crews worked to contain the damage.

Gilliam said residents whose homes are still standing should be allowed back in later in the day.

W.Va. DEP Changes State-Imposed Regs for Stream Crossing Permits

West Virginia environmental regulators have changed some state-imposed conditions to a federal permit issued for stream crossings for natural gas pipelines approved by the U.S. Army Corps of Engineers.

In a letter sent to federal regulators last week, West Virginia Department of Environmental Protection (WVDEP) officials submitted a series of changes to the state-imposed conditions for the Nationwide Permit 12.

The changes include the removal of a 72-hour time restriction for construction of interstate natural gas pipelines under waterways in certain cases.

To cross under streams, rivers and wetlands, major pipeline projects need a permit from the Army Corps under Section 404 of the Clean Water Act. The permits detail how much sediment or debris can end up in waterways during construction of interstate pipelines, but also dams, levees and major highway projects.

The Nationwide Permit 12 is one Section 404 permit. It is used to authorize utility line construction as well as to authorize the building of natural gas pipelines.

Under federal law, states can add special conditions to those permits. WVDEP began the process of updating West Virginia’s 401 Water Quality Certification standard and special conditions in August 2018.

The WVDEP previously required interstate pipelines must be built under major rivers within 72 hours.

This caused problems for the 303-mile Mountain Valley Pipeline. Last year, a federal court threw out the project’s Section 404 permit after environmental groups argued pipeline developers’ own planning documents showed they couldn’t meet that 72-hour waterway crossing deadline. Currently, the project is awaiting new Section 404 permits and can’t do construction under waterways.

The new modifications clarify that stream crossing methods that are done when streams are flowing must be completed within 72 hours, but that stream crossings where waterways are damned, also called the “dry ditch” method, are exempt from the 72-hour requirement.

Construction and access bridges and crossings on Section 10 rivers are also exempt from the 72-hour requirements, the letter states.

Pipeline activist group, Appalachians Against Pipelines, launched a demonstration due in-part to the changes to the permitting scheme.

Last Thursday, 22-year-old Holden Dometrius locked himself to welding equipment at a Mountain Valley Pipeline construction site near Lindside, which caused work to stop, the group said in a news release. 

A representative for the group said the action and signs Dometrius held, which read “To hell with your permits” and “No borders, no prisons, no pipelines on stolen land” were in reference to disapproval with all permits issued to the project, including WVDEP’s recent changes to the Section 401 Water Quality Certification.

The changes are subject to review by both the Army Corps and U.S. EPA.

Clarification: This story was updated on 5/1/2019 to clarify that the changes made by the WVDEP were only made to the Nationwide Permit 12.

 

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