A bill under consideration by the General Assembly of Virginia would incorporate elements of the federal Green New Deal Resolution into state law and prohibit new interstate pipeline projects in the state. House Bill 77 would, among other things, require the Virginia Department of Mines, Minerals, and Energy to adopt a Climate Action Plan to address climate change and require power companies operating in Virginia to generate at least 80% of their electricity from solar, wind, geothermal, or ocean tidal sources by 2028. To help ensure that these goals are met, the bill contains a moratorium on state permitting agencies granting approval to new fossil fuel infrastructure starting on January 1, 2021. That provision forbids any state agency or political subdivision from giving permits or other approvals to, among other things, “[a]ny new gathering line or pipeline for the transport of any fossil fuel resource that requires the use of eminent domain on private property.”
Although the bill has a couple of exceptions, those exceptions will not permit the construction of significant projects in the state. The first exception to the moratorium is for those projects that do not require the use of eminent domain to take private land. This would permit the construction of projects that cross over only land that the company already owns, public land, or private land that the company can acquire through voluntary acquisitions. Such projects are likely to be few in number and very small in scope. Major projects, like interstate pipelines, would almost certainly not fall within this exception.
The other exception is for projects authorized under federal law that preempts the statute. Unfortunately, pipeline projects are unlikely to fall within this exception either. The Natural Gas Act does have a relatively broad preemptive effect and would prohibit a state agency solely applying state law from defeating or mandating a change in course of any project approved by the Federal Energy Regulatory Commission. However, the Natural Gas Act’s preemption provision contains carve-outs for certain state regulatory programs authorized under federal law—namely, those under the Clean Water Act, Clean Air Act, and the Coastal Zone Management Act. Virginia has approved programs under each of those federal acts. The State Water Control Board and the Air Pollution Control Board, both a part of the Department of Environmental Quality, administer the programs under the first two statutes, and practically every environmental agency in the state has policies that are part of the state’s Coastal Zone Management Program, which generally applies east of Interstate 95. The proposed bill is worded broadly enough that it would prohibit agencies from issuing permits pursuant to those programs as well as making the certifications of compliance with coastal policies under the Coastal Zone Management Program. Denials of such permits would spell the end of any new project proposed to pass through Virginia and would almost certainly lead to litigation.
Though the bill would likely mean that no new pipeline projects could be constructed in Virginia, it is unlikely to affect those projects already under construction—namely, the Atlantic Coast Pipeline and the Mountain Valley Pipeline. While the permits issued for those projects have been challenged in court and there is a chance that the courts will require the agencies to reconsider the granting of those permits, the bill, if adopted, will not apply to those reviews because of the presumption against applying new statutes retroactively to matters pending at the time the statute was adopted.
House Bill 77 has been referred to the House Commerce and Labor Committee. It has been assigned to Subcommittee 3, which will consider the bill at its February 4, 2020 meeting. The bill’s progress can be tracked here: https://lis.virginia.gov/cgi-bin/legp604.exe?ses=201&typ=bil&val=hb77. Its text can be found here: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB77.
Nigel Davies / Laying the gas pipeline at Pontarddulais
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