A legal battle currently unfolding in southern Virginia will set the stage for future environmental protests.
A Montgomery County Circuit Court judge signed an order on Nov. 2 imposing injunctions against six defendants and pipeline protesters in a lawsuit brought by Mountain Valley Pipeline (MVP), LLC, a joint venture between five fossil fuel companies: Equitrans Midstream Partners, LP, NextEra Energy Capital, Inc., Con Edison Transmission, Inc., WGL Midstream, and RGC Midstream, LLC.
At the center of the case is a $7 billion pipeline that would transport fracked gas 303 miles from West Virginia to southern Virginia, 3.5 miles of which would cut through the Jefferson National Forest. The fracked gas would come from western Pennsylvania, which sits atop the Marcellus Shale, a sedimentary rock stretching through Appalachia that formed millions of years ago.
Since the pipeline was first proposed in 2014, environmental groups, landowners, and advocates have attempted to legally stall its construction by challenging permit applications and filing environmental protection lawsuits. However, over the past four years, state and federal government agencies have closed ranks around the pipeline, ushering in its completion by greenlighting permits and quashing legal dissent.
With few other avenues of opposition available to them, activists have used direct action to fight the construction of the pipeline.
“It has always been the case that folks who have participated in that kind of illegal action, that extra-legal action, had first started with the law and exhausted all of those legal avenues,” said David Pellow, a professor of environmental studies and social movements at the University of California, Santa Barbara, as well as the Chair of the Environmental Studies Department.
According to activists, the pipeline companies have operated in violation of environmental permits, and their response to the protests is unprecedented. In July, MVP launched its lawsuit against protesters for damages related to direct action protests, but the Sept. 5 motion for temporary injunction pushed further, requesting that defendants be prevented from entering construction areas. Activists, many of whom declined to go on the record with Prism due to ongoing legal proceedings, said they were concerned about the lengths the companies have been able to go to quash and intimidate protesters.
The protests at the center of the injunction took place in July, August, and early September and involved people locking themselves to equipment or otherwise blocking construction, creating work stoppages, and preventing further damage to the land. The lawsuit claimed that these work stoppages, the longest lasting seven hours, violated the company’s property rights. Additionally, the lawsuit cited Virginia’s right-to-work law guaranteeing a workplace without “interference or threats” and a state code that prohibits picketing that impedes free entrance into “any premises.”
The lawsuit asked the judge to award compensatory and punitive damages of more than $1.3 million, as well as additional damages of $3 million levied against individual protesters and the grassroots organizations Appalachians Against Pipelines and Rising Tide North America, which facilitated bail fund donations. Activists say the pipeline is halfway complete, though the company claims construction is 94% complete and that protests are preventing the final pipe sections from going into the ground for the pipeline to be complete by early 2024.
“These companies are saying it’s a done deal [because] then everybody doesn’t pay attention to it,” Lisa, a protester from northern Virginia, said. Lisa declined to use her last name out of fear of legal retaliation.
With protesters potentially on the hook for millions of dollars, the lawsuit is the company’s most ardent escalation to stop direct actions against the project. Legal scholars are concerned that lawsuits like these are a blatant attempt to “chill” protest activity and dissent against climate harm. As Prism previously reported, fossil fuel companies, police, and state governments collaborate on legislation that effectively muzzles those who disagree with extractive projects.
“It’s horrible,” Lisa said. “But this is what [the company] intended to do.”
Prism reached out to MVP for comment but did not receive a response by the time of publication.
In the year since MVP was announced, the energy sector spent $4.6 million on state election campaigns in West Virginia. According to a recent report from the environmental organization Greenpeace, Virginia Gov. Terry McAuliffe “brokered” two deals regarding the Mountain Valley Pipeline “worth $30 million total that preemptively absolved the companies of responsibility for damage to Virginia’s forests, water resources, and historic properties.”
At the same time, there has been a rise in anti-protest legislation that paints dissent as criminally violent and equates protest to terrorism, raising the stakes for those who take direct action. Since 2020, shortly after MVP construction began, West Virginia has approved multiple anti-protest laws.
The criminal legal retribution against direct action protesters is becoming more severe. On the platform X, Appalachians Against Pipelines posted that a protester who blocked construction at the Elk River crossing was arrested and charged with a misdemeanor. His bail was set at $35,000. Typically the bail amount for a misdemeanor is $500-5,000.
Mountain Valley Pipeline is a dangerous deal
Granted federal approvals in 2017, the pipeline began construction in 2018 despite public outcry regarding what community members and activists said were egregious violations of democratic processes—not to mention potential for environmental harm and pipeline explosion. Between the physical conditions of the 42-inch diameter pipeline, the terrain of the pipeline route, and dire consequences of climate change, activists assert that the Mountain Valley Pipeline is a dangerous deal.
If operationalized, the pipeline would annually emit upwards of 95 million metric tons of greenhouse gasses into the atmosphere—the equivalent of 26 coal-fired power plants. The companies behind the fracked gas pipeline have also allowed the pipeline to sit above ground for long periods of time, leaving some sections exposed to rain, wind, and sun for more than six years. The protective coating of the pipeline degrades after just six months, making the pipeline prone to cracks and, in some cases, explosion.
MVP could not be reached for comment regarding the pipeline’s safety and environmental hazards.
Traversing hundreds of miles of steep terrain, landslide-prone mountainous areas, and even regions within earthquake zones, pipeline “slippage” is another serious concern. Nearly 75% of the pipeline’s route is mapped through these areas of concern. If the pipeline were to slip, it could result in an explosion or spill. According to federal documents, the pipeline has slipped during construction in at least four places.
Even without the challenges of building in environments as complex as the Mountain Valley Pipeline’s route, pipelines built on relatively flat ground frequently leak. A June 2022 report published by the U.S. PIRG Education Fund, Environment America Research & Policy Center, and Frontier Group found that a new major pipeline leak is reported to a federal agency every 40 hours. Thirteen percent of those leaks resulted in an explosion.
Despite a permitting process in which the pipeline’s funders and operators repeatedly demonstrated an inability to comply with the law and environmental protection statutes, the company has prepared hundreds of miles for pipeline burial. The pipeline’s route contains a documented 429 water crossings that include streams and wetlands, polluting downstream and drinking water sources with sediment and posing risks to endangered species of fish.
Throughout construction, the company has violated state and federal permit obligations and agency regulations. MVP violated its construction permit 139 times, water quality standards at least 46 times, and Virginia sediment and erosion regulations more than 300 times.
Federal government greenlights Mountain Valley Pipeline
The unprecedented level of political maneuvering to get the pipeline in the ground began with the 2022 Inflation Reduction Act, heralded by many mainstream environmental advocacy groups as a groundbreaking climate bill because of its support for solar and wind energy production and electric vehicles. Others claimed that the bill wouldn’t even meet President Joe Biden’s own climate goals to halve emissions by the end of the decade. But the bill also came with serious political backing, namely from West Virginia Sen. Joe Manchin, whose administration threw its support behind the Mountain Valley Pipeline.
“I think rural people in Appalachia have realized that the government’s always gonna fight against them and side for the corporation,” said Emily Satterwhite, an associate professor of Appalachian Studies at Virginia Tech. The professor told Prism that the federal government’s zealous support of the pipeline companies proved to her that the government was “soulless.”
Months after the passage of the Inflation Reduction Act, the Biden-Harris administration began to make good on its initial promise to greenlight the pipeline and rid the company of any legal challenges. Major pipeline projects like MVP require approval from the Federal Energy Regulatory Commission (FERC), a five-person president-appointed board. In April of this year, Secretary of Energy Jennifer Granholm wrote a letter to the commission asking that the pipeline be allowed to proceed “expeditiously.”
In the letter, Granholm claimed that fracked gas was a critical part of the country’s energy transition to non-fossil fuel sources. Satterwhite said this is a false equivalency: Regional community and environmental harm is not necessary for a greater climate good. Granholm’s letter suggests the opposite.
“So long as we continue to be willing to sacrifice a group of people or a community or region, we’re not getting out of this,” Satterwhite said.
Congress approved the Fiscal Responsibility Act in June, which raised the debt limit and allowed for increased spending in other policy areas. Attached to the bill was a provision granting any remaining permits needed by the companies to continue construction on the pipeline. Advocates said that for legislators to vote against the pipeline, they would have to vote against the bill altogether—and few would. The Supreme Court lifted orders the following month so that construction could continue even while litigation on permit applications was pending.
This is the challenging political backdrop activists and rural community members living along the pipeline’s route are navigating. With few available civic methods for blocking construction, activists turned to the direct action for which the multibillion-dollar energy companies now seek remediation.
“[Protesters] are doing extraordinarily important work,” Pellow said. “It is the highest calling to fight for justice in the face of repression. We should never be surprised when repression is visited upon communities of resistance.”
Following the injunctions against six of the defendants named in the suit, the judge still has to make a final determination on the case. A date for the next hearing has not yet been made public. Protesters said that while the lawsuit signals a concerning trend in free speech and democratic participation, it won’t quell their efforts.