Photo of court which is an important component of environmental advocacy and regulatory processes
May 6, 2022

A Student Learns About Regulatory Processes: Why Advocacy Matters

My name is Ellie Toler, and I’m a second year student at the University of Virginia, studying Global Sustainability and Public Policy. I’ve been interning with Wild Virginia throughout the past academic year, and I’m incredibly grateful for this experience, as it has impacted me both personally and professionally in a number of ways.

One aspect of this experience that has been particularly influential has been learning about environmental regulatory processes through my work with David Sligh. When I started working with Wild Virginia in August, I had limited knowledge about environmental policy, despite being very interested in the field. I also knew fairly little about the legal history of the Mountain Valley Pipeline. However, over the course of the past eight months, I’ve gained significant exposure to legal and regulatory processes, such as public comment periods, hearings, and oral arguments.

Although I had the privilege of having Dave, a great mentor and walking encyclopedia on these issues, I’ve often felt lost trying to navigate legal jargon, confusing nuances of the law, and just generally trying to keep up with all of the different decisions and understanding their implications for Virginia. Thus, I can relate to anyone who tries to keep up with Mountain Valley Pipeline (MVP) and feels that they’re grasping for a deeper understanding of the regulatory decisions that have surrounded the fight over the past eight years.

Virginia’s Water Quality Regulators

In the fall of 2021, one of the most significant processes that I witnessed was the State Water Control Board (SWCB) hearing deciding whether or not to grant MVP the Clean Water Act Section 401 Certification, which would endanger hundreds of streams and wetlands. MVP applied for this permit in March of 2021, and it was the Department of Environmental Quality’s responsibility to publicly advise the Water Board on whether or not it should be approved.

Admittedly, I did not realize how flawed DEQ’s current infrastructure is until I discussed some of their previous decisions with Dave and heard agency officials advise the SWCB to approve the permit. It was infuriating to learn that SWCB could decide to prohibit the public from speaking at the meeting where it would make its ultimate decision, arbitrarily skipping this standard procedure, as this would have been a crucial opportunity for Wild Virginia and other advocacy groups to call attention to ways that DEQ failed to formulate a complete response to public comments.

This helped me to realize how important it is for people to have an understanding of the ways they can contribute to these decisions through public comment periods, especially as rules can change from one hearing to another. Furthermore, many people do not know how to submit public comments or feel that their voices will not make a difference. Wild Virginia helps people play their proper roles – an important reason to join the group and keep up to date on happenings and opportunities to participate.

Lastly, this hearing made me more aware of the need for stringent requirements on the responsibilities that fracked natural gas projects like MVP have toward environmental justice communities. Hearing from leaders like Crystal Cavalier-Keck and Bernadette “BJ” Lark was extremely moving and led me to do further research about ways that public policy can better define environmental justice and hold corporations like MVP accountable.

Court Battles

More recently, I had the chance to listen to oral arguments in front of the federal D.C. Circuit Court of Appeals, where petitioners from six environmental groups challenged the Federal Energy Regulatory Commission (FERC) over decisions to allow the pipeline to continue construction without proper analysis of harms and all necessary permits.

This hearing taught me a lot about how lawyers and judges approach the issues in this kind of case. These insights give me a better context for understanding how the public’s involvement in regulatory processes translates into later legal challenges and I think it would be beneficial for more people to see or hear such proceedings.

Oral arguments are opportunities for attorneys on both sides to briefly present arguments to the appellate court. In this hearing, FERC and MVP defended the approval of some pipeline activities, arguing that prohibiting all construction would cause a greater amount of environmental harm. They contended that there is no need for a supplemental environmental impact statement despite the fact that MVP’s plans have changed multiple times and there have been over 300 water quality violations since the last EIS was carried out in 2017.

The environmental groups argued that the appellate court should overturn FERC’s decision from the fall of 2020 that allowed MVP another two years to complete the project. Furthermore, these groups argued that it is arbitrary and capricious for FERC to dismiss a supplemental EIS, as NEPA requires analysis of environmental impact “if there is significant new information relevant to environmental concern.” The judges were particularly concerned about the fact that FERC has not responded to a request for a stop work order that was called for in February by Appalachian Mountain Advocates on behalf of many advocacy groups, including Wild Virginia.

One aspect of these oral arguments that stood out to me was the way that Judge Millet interrogated each party. The judges thoroughly questioned both sides during the hearing but seemed to challenge the agency and company attorneys with more skepticism than they showed for petitioners’ arguments. I found the specificity and timing of Millet’s questions to be very interesting. Her questions highlighted how meticulous these lawyers have to be when presenting their arguments and how they often have to switch gears entirely depending on the questions asked of them.

Another interesting point during the arguments was when Judge Srinivasan proposed a hypothetical to the lawyer representing FERC, Matthew Estes. The judge was leading him to admit that the degradation caused by MVP calls for a supplemental EIS; however, he crafted a hypothetical situation regarding FERC’s responsibility to take action in order to prompt this concession from Estes. While some of the technical aspects of these arguments were definitely confusing at times, overall they demonstrated FERC’s inconsistency in how they have regulated MVP.

The Process Matters – We Can Make Things Better

Throughout my time at Wild Virginia, I have come to realize how important these environmental regulatory processes are, as government agencies too often fail to uphold environmental laws and address environmental justice. Before this internship experience, I was not aware of the legal capacity that environmental nonprofits like Wild Virginia have in fights against corporations such as MVP.

It has been extremely empowering to watch these groups make a difference through legal and regulatory victories such as the loss of MVP’s permit to cross through the Jefferson National Forest, as well as the loss of their biological opinion.

Furthermore, victories such as the Air Board’s decision against MVP Southgate have shown me the power of citizen advocacy and reinforced the importance of speaking out against injustices inflicted on both human and nonhuman communities in Virginia.

Even if you feel as though you have limited knowledge about these regulatory processes, writing to decision makers, attending rallies, and joining groups like Wild Virginia are just a few of the ways that you can have significant impacts on environmental regulatory decisions related to MVP and beyond.