The Nightmarish Complexity of Environmental Regs

As far as I’m concerned, the environmental regulatory process governing the proposed Atlantic Coast Pipeline and Mountain Valley Pipeline is incomprehensible. And that’s a bad thing. If only a handful of regulators, industry players and environmentalist activists can navigate the layers of bureaucracy and thicket of rules, the public is the loser.

In the latest hoo-ha, the Department of Environmental Quality (DEQ) has back-tracked on public statements regarding how it will regulate erosion and sediment control of pipeline construction crossing steep mountain slopes.

On April 6, DEQ issued a press release stating that “in addition to utilizing the U.S. Army Corps of Engineers nationwide permit 12 for wetland and stream crossings, DEQ will be requiring individual 401 water quality certifications for each project.” The next day, DEQ issued another press release stating that the department “has provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits.”

Got that? Me neither.

Needless to say, that bureaucratese is unintelligible to the normal human being, and even to spokesmen and reporters whose job it is to translate the gobbledygook. In response to inevitable media inquiries asking what the April 16 press release meant, DEQ spokesman Bill Hayden said that DEQ would require certifications for each individual pipeline segment that crossed or affected any waterway. That meant hundreds of certifications. That is what the Richmond Times-Dispatch understood, what the Roanoke Times understood, and what I understood.

But DEQ Director of Operations James Golden is now saying that Hayden had spoken before he had been briefed by “technical” staff members at DEQ. (So explains the Times-Dispatch today.) DEQ will rely upon a U.S. Army Corps of Engineers national permit. Rather than duplicate the Army Corps’ work, Golden told the T-D, the state’s individual certifications will focus on “upland areas” outside the Army Corps’ jurisdiction.

Asked why DEQ took nearly seven weeks before correcting the widely published remarks, Golden conceded that “in hindsight, DEQ should have tried to provide additional clarity.”

DEQ’s statements never added up to environmental groups, and they made an issue of the seeming discrepancy between the April 16 and April 17 press releases. After endeavoring to understand what it all meant, I headlined the resulting post, “A Brain-Frying Foray into the Regulatory Maze.” In what was surely one of the least-read articles in the history of Bacon’s Rebellion, I tried to sort through the difference between 401 certifications and Permit 12, general permits, individual permits, blanket permits and more. (I never got around to explaining 404 permits, which are relevant somehow.)

Despite the fact that I tediously double-checked information in the article before publishing, I still got stuff wrong — or so says David Sligh with the Dominion Pipeline Monitoring Coalition, a former regulator himself. But I found his correction so incomprehensible that I just appended it whole to the post, and let readers figure out what it meant.

Bottom line: I don’t think harshly of Hayden for disseminating inaccurate information. He was probably as confused as I was. (Well, not that confused. But pretty confused.) Where DEQ fell down was in not correcting the inaccuracies when they began circulating in the media. Frankly, the fact that they didn’t do so makes me wonder if DEQ officials above Hayden knew exactly what was going on.

One conclusion seems unavoidable: When the regulatory system is so full of jargon, is so complex and has so many interlocking pieces that career administrators of DEQ can’t communicate the story accurately to the public, something is wrong with the system.

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4 responses to “The Nightmarish Complexity of Environmental Regs”

  1. LarrytheG Avatar

    I think you’d find the same “maze” no matter what area whether it be …say rape reporting by Higher Ed… VDot regulations… TANF/Medicaid… even local zoning codes… the VA… storm-water, etc…

    The point is that for a regulation or law to “work” it has to deal substantively with all the real-world nooks and crannies.. that the average person never considers and that the bureaucrats must – or they’ll end up hauled into court by the aggrieved and would-be aggrieved.

    It’s frustrating to the average person but if that average person had to implement a rule that “worked” to cover all real world circumstances – he/she would be getting into the same maze.

    The real world is complicated and that means rules that apply will also.

    Look at your own driver’s license and think just how complicated can that license be? Well.. it can be VERY COMPLICATED because of all the different situations it has to cover… mind numbing -yes… necessary – yes.

    I suspect in this particular case – DEQ is trying to find a path that won’t blow up later if the opponents challenge in court…

    You’ve got two separate companies that both are proposing pipelines over hill and dale adversely impacting natural and cultural resources and the obvious question is why since it’s way more than actual, legitimate “need”.

    The existing pipelines and the gas they carry is said to be more than adequate for demand… and that much lower impact additions can be made to increase capacity… yet Dominion insists on what they want … for their own for-profit venture… don’t blame the regulators when it is Dominion that intends to cross hundreds of streams … when it does not have to – it’s a choice they make in the interest of their own business endeavor … not something that must be done or else the public is harmed.

  2. I am an individual citizen on the outside looking in at this process. It is difficult to say for certain what is really going on. I suspect the actions are much more political than they are procedural.

    When I was in the utility business, we made a number of applications for 401 permits relating to various projects. This was in New York which is where water quality is most rigorously protected, except perhaps for California. The permit requirements are stringent, but they exist to enforce federal law, the Water Quality Act. It is presumed that an applicant has experts, or can hire experts, to provide the information required in the permit application.

    Our local contractors must meet these requirements, yet multi-billion dollar utility holding companies are unwilling to meet them. Governor Cuomo of New York asked his Department of Environmental Conservation to require a proper 401 permit application for the Constitution Pipeline that FERC had approved. The developers of that pipeline were unwilling to provide the necessary information in order to be granted that permit so they halted construction and have elected to sue the State of New York rather than comply with the requirements that many other applicants have successfully met.

    I suspect something similar happened in Virginia. The DEQ staff likely said that the pipeline projects should meet the requirements that other construction projects in Virginia must meet and a full 401 permit should be required. At some point, at the original announcement of the ACP (I thought), the fix was in and Dominion had the Governor’s agreement that DEQ would not be asked to do their job, so the project could proceed without a hitch.

    The difficulty for pipeline projects is that if they fully describe the construction methods to be used for stream crossings, erosion control, and other effects on water quality, it will be clear that they cannot meet the current standards of protection.

    The strategy that has worked so far is that FERC does not require detailed and accurate information from the applicant. This allows them to conclude in the EIS that the pipeline will have “no significant impact” because the generic descriptions provided by ACP make it appear that there will be none.

    Information provided by the ACP is not sufficient for the U.S. Forest Service to accurately assess the impacts of the pipeline as it crosses our national forests, as they are required by law to do. Despite multiple requests and multiple promises by Dominion to provide the information, they have not. As a result, a Dominion executive criticized the delay in receiving the Forest Service’s response in a Senate hearing.

    In several instances, when some information has been provided, it is wrong. Items are incorrectly located on maps and drawings submitted to FERC, even the though the correct information was provided to Dominion by private citizens or cooperating agencies.

    Not providing the information is the safest path to approval. Getting permission to use the handful of generic practices authorized by the Corps of Engineers nationwide permit, rather than the specific case-by-case practices that are necessary to protect water quality, a pipeline developer can save substantial time and money. However, they cannot also save the water quality in the region of pipeline construction.

    The federal government is poised to embark on an even greater push to build natural gas infrastructure despite ample evidence that our energy use is not increasing, and that cleaner, cheaper alternatives exist, including using the available capacity in existing pipelines.

    There is nothing that requires a rush to judgment and an end-run around statutory requirements. The power plants in Virginia and North Carolina that are the principal justification for the ACP are being pushed back or abandoned. We have the time to do this right. If we cannot meet the requirements of the permitting process, Virginia citizens are owed an explanation as to why we cannot protect our waters as the law requires.

  3. When you are involved in utility projects, you understand that there is often a trade-off between cost and environmental protection. We have regulatory processes that are supposed to accomplish that because the environmental costs are seldom monetized. When they are, it is often difficult to attach it to the cost of the project or commodity involved.

    For example, a study from Harvard defined the annual societal costs of burning coal at $345 to over $500 billion per year. If attached to the commodity this would add 18-27 cents per kWh. Such knowledge is inconvenient when an industry or region is trying to realize a short-term gain from an enterprise.

    But we should keep in mind that the two pipelines proposed for Virginia are not utility projects, but projects by private enterprises for private gain. FERC is required by the Natural Gas Act to evaluate the Public Convenience and Necessity of the project before a certificate is issued. Up to now that has been done only by inspecting whether contracts exist to utilize at least some of the capacity of the project.

    Those contracts are typically between the owner’s of the pipeline and their subsidiaries or affiliates. FERC’s own guidelines say that this is not an accurate determination of market demand for a project.

    I know how difficult these regulatory processes can be. I’m sure they can be improved. But we put the balancing of the public’s interest in the hands of these regulators. We should expect them to follow the law and we should expect applicants to meet the requirements of the permit.

    This dance requires two. If the applicants have a good case for the need for their project, they should present it for all to see. If it is a good one, based on accurate information, most reasonable observers will accept it and the process can move more quickly. Applicants should not complain about the sluggishness of the process if they have not provided the necessary information for it to proceed.

    If they make proclamations about how friendly their projects will be to the environment, providing detailed proof of those assertions should speed the process as well.

    In too many of our governmental processes today, we have abandoned reasonable discourse, with facts open to cross examination, and substituted the purchase of political influence and argument by press release.

    As citizens and sovereigns of this Dominion, we should expect and receive the best from our public servants and our leading businesses.

  4. […] DPMC Letter to Governor McAuliffe, 05/24/17 Richmond Times-Dispatch, 05/24/17 Roanoke Times, 05/24/17 Washington Post, 05/25/17 News Virginian, 05/25/17 Blue Virginia, 05/25/17 Bacons Rebellion, 05/25/17 […]

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