This is how our regulatory agencies fail us

This blog post was written by POWHR’s Managing Director Russell Chisholm. Russell is an impacted community member who has been organizing against the Mountain Valley Pipeline since it was first proposed.  

For the third time, the U.S. Fish and Wildlife Service (USFWS) has issued a Biological Opinion (BiOp) and Incidental Take Statement for the Mountain Valley Pipeline. This is one of several authorizations the MVP needs to restart construction.

To state it simply: the agency is claiming that MVP won’t harm protected species in its path. They believe, despite an abundance of evidence to the contrary, that MVP construction won’t harm the candy darter, the Roanoke log perch, the Indiana bat, nor any other threatened species.

Yet we only have to go back a year to see a public official correct this claim. In February 2022, their previous opinion was overturned by the U.S. Court of Appeals for the 4th Circuit. At the time, Judge James Andrew Wynn wrote, “if a species is already speeding toward the extinction cliff, an agency may not press on the gas.”

My friend and an impacted West Virginia landowner, Maury Johnson (who also serves on POWHR’s Executive Committee), shared the following reflection with me: “Not only is my family farm being destroyed by MVP, so is the very creek where I was baptized. I hate to witness the destruction of Peters Mountain, the Appalachian Trail, and the Jefferson National Forest, which have been ever-present in my life. The unique and endangered species that call it home shouldn’t be sacrificed for the greed of a few corporate elites.”

Troublingly, but not surprisingly, USFWS declined to consider recently submitted public filings, yet they acknowledged that “FERC and other action agencies will need to assess whether the materials contain any new information that might prevent them from relying on this Opinion…” Consultation on this BiOp ended on February 28th and USFWS had up to 45 days to make a decision. So why didn’t they make the time to consider the new filings before issuing their opinion? Why the rush when the future of our ecosystem and critters are on the line?

Appalachian Voices’ Virginia Policy Director Peter Anderson points out that in the decision making process, “Information was heavily redacted prior to public release, there was no comment period, and the agency refused to incorporate materials submitted during the consultation process regarding the pipeline’s potential impacts to sensitive species. The agency has not addressed legitimate public concerns, and the U.S. Fish and Wildlife Service’s lack of transparency and thoroughness during this decision process is irresponsible.”

It is not a requirement that the agency take the full 45 days, however they have a track record of rushing their decisions. The mission is to protect endangered species, yet their decisions convey neither care for the species nor regard for the people speaking up on their behalf. The USFWS is tasked with giving the impact of projects like MVP a hard look. Their consistent rush to review new information speaks louder than words.

Wild Virginia’s Conservation Director David Sligh sums it up nicely, “It seems the agency was more interested in meeting the pipeline company’s schedule than protecting the precious species it’s supposed to be looking after.”

The new information submitted to the USFWS included a report prepared by David Sligh. The report shows that nearly 1,500 pollution incidents have either directly harmed Virginia streams and wetlands or have caused imminent threats of damage. Instead of relying on thorough reports like Sligh’s, the agency chose to lean on the company’s own flawed analysis.

Remember, this is a company that routinely tells FERC they are 56% complete to full restoration but tells the public they are somewhere between 90 and 96% complete (depending on the day).

Federal regulatory agencies like USFWS have a long history of letting down communities facing environmental injustice. In our near-decade fighting this disastrous, unnecessary project, we’ve seen agencies that claim to protect us consistently side with and listen only to corporations.

This is a shameful result of a political system that consistently lets down rural, poor communities and burdens them with environmental injustice. This pattern must stop and it’s up to the other agencies with pending regulatory decisions on the MVP to correct the wrongs committed by their past iterations and the USFWS by listening to science and impacted community members.

You can take action by telling the Federal Energy Regulatory Commission to reject the USFWS’s decision.