Legal Actions Against Mountain Valley Pipeline Underscore Grassroots Activism’s Importance
Nicholas Stump 9th August 2018

The Mountain Valley Pipeline (MVP) is a 303-mile U.S. interstate project currently under construction that would transport fracked natural gas from northern West Virginia through southwest Virginia. The MVP is highly controversial due to its immediate Appalachian environmental and human community impacts, in addition to its exacerbation of climate change. Numerous legal actions have therefore been initiated to halt the MVP including, most notably, federal litigation efforts. Appalachian activists occupy a central role in such legal actions, as illustrated by joint grassroots organization participation in litigation. What is more, other Appalachian citizens have engaged in broader resistance actions (e.g., tree sit-type direct actions) that have substantially raised public awareness on MVP issues.     

The MVP constitutes a prominent example of problematic natural gas industry infrastructure development in Appalachia (among others, such as the Atlantic Coast Pipeline)—and thus has been targeted by environmental legal advocates. Several federal litigation victories have recently been achieved. For instance, the Fourth Circuit granted a stay on a Clean Water Act (CWA) permit issued by the U.S. Army Corps of Engineers (Corps) for the MVP. The Corps issued the permit, popularly termed a “nationwide permit 12,” for the pipeline builders to cross waterways. The permit was issued unlawfully, however, because the MVP failed to meet its conditions; namely, the waterway crossings could not be completed within the required 72-hour time restriction. The effect of this order was to halt pipeline construction at 591 waterway crossings in West Virginia.

In another action, the Fourth Circuit rescinded MVP permits issued by the U.S. Forest Service and the federal Bureau of Land Management. The Court found that the Forest Service incorrectly concluded that pipeline-produced sedimentation and erosion could be mitigated; the Forest Service violated its 2012 Forest Planning Rule, and; the Bureau of Land Management violated the Mineral Leasing Act in failing to demonstrate that MVP use of alternative, pre-established right-of-ways was “impractical.” The Court broadly noted that “American citizens . . . deserve more than silent acquiescence to a pipeline company’s justification for upending large swaths of national forestlands.” This ruling had the effect of halting all pipeline construction in Virginia’s Jefferson National Forest.  What is more, following the Fourth Circuit’s order, the Federal Energy Regulatory Commission (FERC) ordered a temporary stop on all MVP construction, which has been hailed as a significant development.

Appalachian grassroots organizations are deeply involved in these recent MVP victories, as such organizations served as environmental plaintiffs in these actions. The Appalachian Mountain Advocates brought the CWA-related action on behalf of Appalachian Voices, West Virginia Rivers Coalition, the Sierra Club, and Chesapeake Climate Action Network. Similarly, the Sierra Club brought the action against the Forest Service and the Bureau of Land Management on behalf of Wild Virginia, Appalachian Voices, and the Sierra Club. Indeed, in recent decades, such coalition-based environmental plaintiff action has emerged as a central tactic of Appalachian grassroots organizations (i.e., in the context of anti-coal mining and anti-natural gas etc. movements). As Robert Todd Perdue and Christopher McCarty document in their empirical study Unearthing a Network of Resistance, “many Appalachian activists have chosen to work within the legal system” to redress industry-produced environmental harms, and “joint participation in litigation [is often] the primary driver of group collaboration.” Thus, Appalachian grassroots organizations occupy a central role in such legal-institutional efforts.

Equally as important, other Appalachian citizens have engaged in broader resistance practices. In the MVP context, tree sit-type direct actions have constituted the most prominent form of contestations. Such actions—predominantly undertaken by women activists—often involve small landowners in the pipeline’s path in addition to other regional actors (including academic-activists). Appalachian disobedients articulate wide-ranging MVP concerns based on ecological harms, public health, class issues, and race and gender concerns, among others. And MVP-related direct actions have increasingly garnered regional, national, and international public attention.

Appalachian direct action, in fact, could crucially intersect with larger social change efforts. It has been noted that “all citizens have a duty to engage in activism on behalf of environmental justice; and that in a democracy it is the people, not the government, that are ultimately responsible for fair use of the environment.” Moreover, critical theorists are particularly concerned with the fruitful intersection of law and grassroots activism. Günter Frankenberg has observed that “civil disobedience [is] critical legal theory in practice.” Similarly, radical cause lawyering is concerned with how legal actors can “act not as saviors or champions, but rather as partners in collective ventures to change the world.” Viewed through this critical lens, Appalachian direct action can indeed add vital new contours to ongoing, multidimensional efforts towards social change.

Despite the recent Fourth Circuit MVP litigation victories, there have also been losses, and experts rightly caution that FERC’s stop-work order on the MVP may prove temporary; and other natural gas industry infrastructure development continues. Diverse Appalachian grassroots activism will therefore persist as a prime site for socio-legal change in the region and beyond.

Author profile

Nicholas F. Stump is a Faculty Member with the George R. Farmer Jr. Library at the WVU College of Law. He is an Associate with the Oxford Human Rights Hub. His current work is informed by critical environmental law, Appalachian studies, and law and social movements studies. He teaches in the legal research curriculum with an emphasis on administrative law and energy and environmental law.

Citations

Nicholas F. Stump, “Legal Actions Against Mountain Valley Pipeline Underscore Grassroots Activism’s Importance” (OxHRH Blog, 9 August 2018), <http://ohrh.law.ox.ac.uk/legal-actions-against-mountain-valley-pipeline-underscore-grassroots-activisms-importance> [date of access].

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