Monday, August 20, 2018

An Epidemic of Opioid Documentaries — Who Is that Stranger with a Camera?

by Elizabeth Price, 100 Days in Appalachia

It’s been more than five years since documentary filmmaker Sean Dunne of Peekskill, NY, released Oxyana. The IMDb description reads, “The 'Hillbilly Heroin' epidemic that's slowly rotting the soul of rural America.”

As the film begins, a harrowing mist rolls over the hillsides and wooded ridges of Oceana, WV , while a lo-fi guitar score hums. When describing the small, rural town and recent events, a local dentist shares, “It’s incredible and amazing and awful, all at the same time,” as he slouches on an examining table. He laments that it became difficult to appreciate the beauty of the natural landscape as complex social and material problems emerged in his community. He felt haunted by its new reality.

He’s right — Oceana’s beauty is complex. Oxyana’s B reels hardly neglect that. At first, the filmmaker nails a distinct “West Virginianness” — the moodiness of low, ambient dream-haze lighting at roadside service shops at midnight, the lull and familiarity of winding back roads and passing by locals sitting on porches at dusk. The grit of the atmosphere and the grit under your fingernails. Coal lurches up impossibly long conveyor belts to be processed, ethereal fog obscures a full moon, and dew coats the windows of broken down 1970s Winnebagos parked between lush pine trees. West Virginia, like most places, is complex, and Oxyana pays careful attention to intimate glimpses of beauty in contraction, albeit peripherally.

Since the film’s release and subsequent acceptance into the documentary film milieu, the concept of the “opioid crisis” as a long-form documentary genre has emerged. Several independent films have joined Oxyana in undertaking the daunting task of documenting events leading up to and as a result of a public health crisis. Many weigh in on factors leading to the emergence of the American opioid crisis, making the normative claim that the monumental rise in licit and illicit opioid use and trafficking in rural American communities is wrought by irresponsible and unethical decisions made by doctors and pharmaceutical companies.

It’s worth noting, however, that not all documentary films are directed by filmmakers who are intimately familiar with the communities they profile, and Appalachian people have long been exploited by visiting photographers and documentarians.

In 1964, and in the wake of President Johnson’s ongoing war on poverty, photojournalist John Dominis captured images of residents of eastern Kentucky communities as a part of a photo series, titled “The Valley of Poverty,” for the contemporaneously popular LIFE magazine. Therein exists an even more uncomfortable reality that poverty tourism was once a common practice in eastern Kentucky.

The “Valley of Poverty” dispatch aimed to illuminate ongoing Depression Era wealth inequality, which was palpably evident in Appalachian Kentucky, but the photos, in many ways, reduced their subjects to nameless stand-ins for the socioeconomic challenges they themselves and their region faced. To Dominis, their valley appeared “lonely,” their homes “ruins,” and their children “urchins.”

OXYANA TRAILER from Sean Dunne on Vimeo.
Indie film buffs will recognize Oxyana’s Dunne as the creator of a breakout short film, American Juggalo, released in September 2011, which debuted at the 2013 Tribeca Film Festival. Juggalo functions as a sardonic, searingly funny biopic of the lives of a fiercely devoted subculture of followers of the Insane Clown Posse. A once-underground cohort of hip-hop artists hailing from Detroit’s working-class neighborhoods, I.C.P. boats an extensive discography and a loyal following of fans who immerse themselves in the music’s carnival themed lore and macabre motifs.
The laughs are cheap, however. A few views of the 24-minute long film and it’s nearly blatant that the director doesn’t seem to be laughing with the Dark Carnival. In reality, the film is laughing at a quirky fandom of individuals who are merely observing the working class tradition of finding relief, comradery and joy despite everyday pains and monotony through exploring music and culture.
The Juggalos and Juggalettes show the filmmakers how they cut loose and share with Dunne and his crew that the Gathering is the best weekend of their year. The Gathering of the Juggalos seems … eclectic — for lack of a kinder word — to outsiders. It’s no secret that I.C.P. and their fans have found little else but ridicule from onlookers since the Carnival’s inception. But to the Juggalo “family,” as they lovingly refer to one another, it’s meaningful. And to some, the Gathering is the only place where they truly feel accepted and embraced by a community who chooses to love them unconditionally, despite their status in “the real world.”
Juggalo’s dialogue reveals that, most of all, these people are genuinely happy, belting out the ubiquitous “whoop whoop” refrain each chance they get, and maybe — as bystanders — we shouldn’t knock it until we’ve tried it.

Watch the short and you’ll notice that Oxyana begins with Dunne’s newfound curiosity of Juggalo culture. Oxyana‘s opening scene is a short dialogue between the film crew and a man living in Wyoming County, WV, who had just lost a loved one. The man’s account becomes the focal point of the film, sharing intimate truths about the many ways opioid use has shaped his recent life. While holding an autographed shirt with I.C.P.’s hatchet man logo, he shares that it was his loved one’s “pride and joy.” He reveals that he recently lost him to an overdose and was struggling with his loss, holding on to a memento that was special to him in life.
I.C.P. has thousands of loyal followers across the U.S. It seems fairly innocuous that a 30-something man would be a member of the “Juggalo family.” I wondered if the filmmaker found the dialogue to be meaningful enough to be an introductory scene because it was such a palpably relatable depiction of loss. It calls the viewer to remember the longing and heartbreak associated with holding onto the last remnants you have to hold after losing a loved one. On the other hand, Dunne has made a career of mocking I.C.P.’s fans and their subculture, directing a narrative that their beloved cultural markers are garish, obnoxious, and honestly, trashy.

Juggalos gather at the National Mall for the Juggalo March in 2017. Photo by Blink O'fanaye on Flickr.
He chose to begin a long-form documentary that investigates the social and cultural conditions of a southern West Virginia community experiencing unforseen hardships with an “easter egg” Juggalo reference, and honestly, it’s difficult to ignore. Could it be that the scene reveals that Dunne was unintentionally othering his Appalachian film subjects in the same vein that he mocked the Gathering? The subject revealed a special vulnerability that comes with grieving. And I couldn’t ignore the place the scene had in context with Dunne’s earlier work.
The pain of Oceana’s residents is real. Dunne and producers show bleary-eyed, unfiltered accounts of the way opioid addiction has moved through their lives. However, the scene was an uncomfortable reminder that Oxyana’s narrative was never in the hands of those living in Oceana, West Virginia, no matter how well-intentioned its filmmakers were.
Over the past ten years, a documentarian has visited my own hometown to create a similar project.
The documentary trailer features B reel footage—supplemental footage used as “filler” between the main shots—of people intravenously using heroin as often as landscapes. The documentarian periodically visits East Liverpool, OH, to collect material for a documentary and photo-series “project.”

A voiceover explains that there’s nothing worthwhile here. People come here to die.
It’s clear that the filmmaker joins Dunne in conveying a similar message communicated by Oxyana: East Liverpool, too, is hardly more than a community in crisis.

The project offers “industrial de-evolution” as a wholesale diagnosis of our community’s problems without historical context of which of East Liverpool’s native industries no longer function or what led production to a halt. Glum, dreary footage and stills of buildings, neighborhoods and landscapes barely look like the same places I grew up.

My classmates, neighbors and people my mother taught as a high school teacher are depicted wearing outdated, tattered clothing, posed lifelessly in cluttered rooms of working-class homes. Images of the community are devoid of joy. Stereotypical misrepresentations of what people and cultural landmarks in our region look like abound. The systemic issues that these communities face are specters that render the community entirely dysfunctional.

Although I’m not an expert on the function of the “gaze” in art and film, it’s clear to me that the documentary filmmakers and photojournalists that visit Appalachia from elsewhere enter our communities with preconceived notions about who lives here and what struggles we face, effectively leading to inaccurate reporting and their own unconscious social distancing from their subjects.
In spite of everything, I don’t find it difficult to find beauty in places like Oceana or East Liverpool. Like other Appalachian communities, our relationship to more than a century of the presence of extractive industries in our region has compounded complex social problems, which over time have led to the public health crisis symptomatic of the emergence of a new extractive industry: pharmaceutical companies.

But our communities are not defined by the social problems we have no fault in generating, just as individuals and lives are not defined by their struggles with addiction and recovery. Most of all, Appalachian people should have the agency to direct new and extant narratives about their communities and those that do create seminal, revelatory works that uncover truths that would have been otherwise slighted by others.

As a long-form documentary genre focused on the opioid crisis and its cultural reverberations emerges, it becomes evidently clear that those that irresponsibly visit the region, who mistakenly engage in inaccurate reporting and misrepresentation of subjects, contribute to longstanding stereotypes about people in the region, leave and profit from their findings just might have more in common with exemplars of extractive industries that have shaped the Appalachia we know.
Holler-casting blackened bluegrass to you from the Ohio Valley, Liz Price studies Appalachian regional policy by day and spins mountain-metal by night.

Sunday, August 12, 2018

Will West Virginia Become the Next Flint?

Flint, Michigan serves as a prime example of what can happen when when state and local governments put the drinking water supply at risk for short term economic gain. In April 2014, the municipality's water supply was changed from Lake Huron and the Detroit River to the less expensive Flint River. Shortly thereafter, a sharp increase in the number of reported lead poisoning cases lead to the discovery that because the water from the Flint River was not being treated properly, lead was leaching into the water supply and poisoning the residents of Flint. Needless to day, the suffering and misery that was caused by this fiasco -- as well as the cost of treating it -- far outstrips any potential economic gains that the state of Michigan or the city of Flint could have realized.


As Propublica reports below, instead of learning from the Flint experience, other states, such as Virginia and West Virginia, are perfectly willing to place the public water supply at risk for a project that quite frankly, has very dubious prospects of generating any type of long term economic gain for the vast majority of the citizens.


What Happens When a Pipeline Runs Afoul of Government Rules? Authorities Change the Rules.

Federal authorities halted work on the massive Mountain Valley Pipeline this month after an appeals court ruled that federal agencies neglected to follow environmental protections.


by Kate Mishkin and Ken Ward Jr., The Charleston Gazette-Mail, and Beena Raghavendran, ProPublica

A week ago, the federal government halted work on a massive pipeline project that runs from Northern West Virginia through Southern Virginia.

The government said it had no choice but to order work on the multibillion-dollar Mountain Valley Pipeline stopped after a federal appeals court ruled that two federal agencies had neglected to follow important environmental protections when they approved the project.

The court had found that the U.S. Forest Service had suddenly dropped — without any explanation — its longstanding concerns that soil erosion from the pipeline would harm rivers, streams and aquatic life. It also found that the Bureau of Land Management approved a new construction path through the Jefferson National Forest, ignoring rules that favor sticking to existing utility rights-of-way.

“American citizens understandably place their trust in the Forest Service to protect and preserve this country’s forests, and they deserve more than silent acquiescence to a pipeline company’s justification for upending large swaths of national forestlands,” Judge Stephanie Thacker wrote for a unanimous ruling from a three-judge panel of the 4th U.S. Circuit Court of Appeals. “Citizens also trust the Bureau of Land Management to prevent undue degradation to public lands by following the dictates” of federal law.

It turns out, those weren’t the only times state and federal regulators bent environmental standards for the project, which began construction in February.

A review by the Charleston Gazette-Mail, in collaboration with ProPublica, shows that, over the past two years, federal and state agencies tasked with enforcing the nation’s environmental laws have moved repeatedly to clear roadblocks and expedite the pipeline, even changing the rules at times to ease the project’s approvals.

Projects like the Mountain Valley Pipeline, known as MVP, require a variety of approvals before being built. Developers and regulators must study various alternatives, describe a clear need for the project, and show that steps will be taken to minimize damage to the environment and reduce negative effects on valuable resources like public lands and the water supply.

But in numerous instances, officials greenlit the pipeline despite serious unanswered questions, records show.

For example:
— After citizen groups brought a lawsuit challenging how West Virginia regulators concluded that the pipeline would not violate state water quality standards, the state Department of Environmental Protection dropped its review and instead waived its authority to decide if the project complied with its rules. This effectively ended the legal challenge and paved the way for construction to begin.

— Confronted with a similar lawsuit filed by the same citizen groups, the state and the U.S. Army Corps of Engineers moved to rewrite their rules for how long pipeline construction could block the flow of rivers. Environmentalists fear that, under the plan approved by the Corps, four West Virginia rivers could be left dry for long periods of time, potentially harming aquatic life during construction.

— Developers persuaded judges to speed court proceedings and grant them access to private property along the route to cut down trees, saying they needed to do so before protected bats came out of hibernation. But then, despite guidelines saying no logging could take place after March 31, the Federal Energy Regulatory Commission twice extended the company’s deadline.

Regulatory agencies waiving standards and rewriting rules to pave the way for economic projects isn’t new. West Virginians have watched it happen for decades with the coal industry, as mine operators used variances to avoid strict land reclamation standards or fill streams with waste rock and dirt. That pattern is continuing with the natural gas boom.

“I’ve seen this kind of behavior from agencies before,” said Pat Parenteau, who teaches environmental law at the Vermont Law School. “They start out being strong, but they roll over, especially for these big energy projects that have this national interest, energy security push behind them.”

In its “stop work” order last week, FERC said, “there is no reason to believe” that the federal agencies involved would not “ultimately issue” new permits that would withstand the court’s scrutiny. But until then, FERC ordered that “construction activity along all portions of the project and in all work areas must cease immediately.”

A news release from Mountain Valley Pipeline echoed FERC’s statement that the pipeline permits would be easily reissued. Developers said they would work closely with the agencies involved to resolve the challenges to their work and “we look forward to continuing the safe construction of this important infrastructure project.”

When it is built, the Mountain Valley Pipeline will transport natural gas from Wetzel County, near West Virginia’s Northern Panhandle, to Pittsylvania County, Virginia, crossing about 200 miles in West Virginia and 100 miles in Virginia. It is one of several large transmission pipelines in the works across the Appalachians, part of the ongoing rush to market natural gas from the boom in drilling and production in the sprawling Marcellus Shale formation.

In another ruling that exposed flaws in the government’s pipeline review process, the 4th Circuit earlier this week threw out two permits for a pipeline even bigger than the MVP: The Atlantic Coast Pipeline, a $5.5 billion effort to transport gas more than 600 miles, from central West Virginia to the eastern portions of Virginia and North Carolina.

Chief Judge Roger Gregory wrote that the U.S. Fish and Wildlife Service approved the project without setting any real limits on damage to endangered species, and the National Park Service granted permission for pipeline developers to drill under the Blue Ridge Parkway without determining if doing so was consistent with the road’s protection as a unit of the Park Service.
Jeffrey Olson, a spokesman for the Park Service, said the agency is reviewing the ruling.
Because different permits for pipelines cover different parts and types of construction work, it’s not entirely clear how one court ruling that overturns one permit ultimately affects other parts of the construction. Eventually, such decisions are made by FERC, which is the lead agency for gas infrastructure projects.

So far, FERC has not decided if it will issue a broad stop-work order aimed at the Atlantic Coast Pipeline, also known as ACP. Project developers argue that it shouldn’t. They say the ruling affects only a small part of the route and that the “court’s concerns can be promptly addressed through additional review by the agencies without causing unnecessary delay to the project,” which is scheduled to go online in late 2019.

Aaron Ruby, a spokesman for the ACP and its lead developer, Dominion Energy, said the project has been under review for nearly four years by more than a dozen state and federal agencies.
“The courts have found some errors in the process, and they’ve given the agencies the opportunity to correct them,” Ruby said in an email this week.

Pipeline project opponents say the court rulings are evidence of something else entirely.

“This is an example of what happens when dangerous projects are pushed through based on politics, rather than science,” said Southern Environmental Law Center attorney D.J. Gerken, who represented citizen groups in the ACP case.

‘This Is What They’re Taking From Me’

On a spring morning earlier this year, Mark Jarrell got in his all-terrain vehicle and drove up the hill to the top of his Summers County property.

“This is what they’re taking from me,” Jarrell said, looking out onto the Greenbrier River and Keeney Mountain.

That day, Summers County was quiet. But Jarrell knew it wouldn’t last. About a month later, he heard machines whirring outside. He drove up the hill behind his house and found three machines clearing trees to make way for the Mountain Valley Pipeline — leaving behind a barren, 3,000-foot-long and 125-foot-wide swatch running down Jarrell’s property.
He’d dreaded that day for three years, “but when you see it for the first time, that’s the real punch in the gut.”

As West Virginia’s natural gas industry continues to grow, business boosters and state political leaders portray it as the key to a bright future filled with jobs, tax revenue and prosperity. Some residents in communities along the Mountain Valley Pipeline route see the project as part of that hopeful future.

“This is an infrastructure project putting money into the state,” said Bill Shiflet, an insurance agent in Union, West Virginia.

But others are wary that West Virginia has been too quick to embrace the natural gas rush and projects like the pipelines. They fear this movement is taking the state down the same path as the coal industry. And as construction proceeds this summer, some of their fears are starting to come true.
For Jarrell, the Mountain Valley Pipeline means a swath of brown, barren path snaking up the hillside. The pipeline itself will be buried, and the hillside along the pipeline’s 50-foot-wide operational right-of-way will be reclaimed with grass. But it won’t be the same.

“Now it’s real, it’s not talking about it and worrying about it and thinking about it, it’s happening,” Jarrell said. “And there’s not a damn thing you can do about it.”

Water Pollution

Jarrell and many of his neighbors have tried to stop the pipeline, and they have been joined in their quest by state and national environmental groups.

While FERC is generally the lead agency for interstate pipeline proposals, permits and approvals are needed from a variety of other agencies. Environmental groups opposed to the pipelines have challenged the projects at nearly every possible turn, raising issues about local environmental damage, questioning the need for the pipelines and warning of the global warming implications of increased use of another fossil fuel.

Among the many permits they’ve challenged is one called a “401 Certification,” issued under Section 401 of the federal Clean Water Act.

That section was intended to give states a bit of a check on federal authority. It was passed when federal agencies were pushing through large hydroelectric projects that included dams that often upset local officials.

If a state wanted to step in and block such a project, it could refuse certification. States also may attach additional conditions to their certifications. Or they can waive their authority altogether, if they want to.

West Virginia’s Department of Environmental Protection issued its 401 certification for Mountain Valley Pipeline in March 2017, issuing a news release that touted the project’s potential to “transport West Virginia’s abundant natural gas to meet the growing need for power generation” in the Mid-Atlantic and Southeast regions. The DEP directed reporters to the pipeline developer’s own website for information about the “potential economic benefit” of the project.

Local citizens and state environmental groups urged DEP Secretary Austin Caperton to reconsider the permit approval. Caperton refused, and he provided no explanation for his decision. The citizens sued in the 4th Circuit, the federal appeals court that covers West Virginia. (Under the Natural Gas Act, appeals of permits for pipelines bypass local federal district courts and go directly to appeals circuits.)

The lawsuit alleged that the DEP had not really done a required study to determine if the pipeline would harm state waterways. It also said the agency had not required pipeline developers to determine how streams along the route were being used, what the baseline water quality was prior to construction or if the pipeline would “significantly degrade” those waters.

A week before state lawyers were due to explain the DEP’s actions in legal pleadings, the agency said it needed to study whether the information used to issue the water quality certification was adequate or needed to be enhanced. Citizen groups went along with a DEP request that the court send the 401 certification back to the state agency and expressed hope the agency was going to do a better job this time.

Weeks went by, though, and the DEP said little about how this evaluation was being conducted or when it might be finished.

Then, on Nov. 1, Caperton went on statewide talk radio and announced that his agency would not do an additional review. Instead, he said, DEP officials were going to waive their legal authority to decide if the pipeline complied with West Virginia pollution limits.

Waivers are not the normal practice for the DEP, and West Virginia political leaders and regulators usually are staunch advocates of states, not the federal government, calling the shots on environmental matters.

Caperton said a separate state permitting process aimed at controlling stormwater runoff from the pipeline was sufficient and defended the decision to waive the certification authority. He said the DEP would “use all of our resources” to ensure the pipeline would be built safely.
“We feel very comfortable that this pipeline can be installed in an environmentally sound manner and that the environmental impacts ultimately will be zero,” Caperton said on the West Virginia MetroNews program, “Talkline.”

Months later, Caperton’s own inspectors have started identifying problems that belie Caperton’s statement.

Since April, state water quality inspectors have issued citations along the pipeline route in West Virginia: sediment-laden water leaving the construction site; missing or improperly installed runoff controls; failure to add more pollution protections when existing ones were shown to be inadequate. So far, the MVP has not paid any fines for those violations.

Jake Glance, a spokesman for the DEP, defended his agency’s handling of pipeline issues.
“To suggest that we are not performing our statutory duty, or ‘putting our thumb on the scale,’ is simply not true,” Glance said in an email this week. “We remain committed to our mission of protecting the health of West Virginians and our environment, enforcing the regulations passed by our legislature, and ensuring the permits we issue are being adhered to.”

But Angie Rosser, executive director of the West Virginia Rivers Coalition, said her group warned about the water quality violations that DEP inspectors are now finding.

“There are smart people working at [the] DEP who I believe knew these shortcuts would be a problem down the line,” Rosser said. “They knew these pipelines would be a problem for water quality. But my sense is those people aren’t making the decisions. There’s a culture in this state and within our agencies that this is just what we have to deal with as a state reliant on an extractive industry economy.”

Crossing the Rivers

As it winds from West Virginia’s Northern Panhandle to the Virginia-North Carolina border, the Mountain Valley Pipeline will cross four West Virginia rivers: the Elk, the Gauley, the Greenbrier and the Meadow.

For the pipeline to be constructed, each river needs to be dammed and excavated — sometimes with blasting — so that the 42-inch-diameter pipeline may be buried beneath the streambed.
For this work, the Mountain Valley Pipeline needs another type of permit, a Clean Water Act “dredge-and-fill” permit. If the construction is not handled correctly, sediment can increase in the water, oxygen can decrease and aquatic habitats can be harmed. And, of course, while each river is dammed, there is no stream for aquatic life there to live in.
Because of those effects, state officials, working with the Corps of Engineers, put a 72-hour time limit for completing these kinds of stream crossings in West Virginia. That time limit applies to all projects that seek approval under a streamlined Corps of Engineers review process, as Mountain Valley Pipeline did.

The problem is, Mountain Valley Pipeline says each of its stream crossings will take four to six weeks to complete. And despite the 72-hour time limit, the Corps approved the Mountain Valley Pipeline permit anyway, using the streamlined process that saved the developers time, money and scrutiny.

In May, the Sierra Club, the West Virginia Rivers Coalition and other groups sued again in federal court. On June 21, the 4th Circuit issued a stay of the Corps-approved permit until the appeals court could hold an oral argument this fall.

The court order prompted a late-night news release from Gov. Jim Justice.

“This project represents thousands of jobs and millions of dollars being spent to benefit this state, not to mention the long-term stability and boost the energy economy of this country will see as a result of this project’s completion,” the governor said.

Justice said he had talked with DEP officials and “they report that the builders of each segment of this pipeline work hard to protect the waters of this state, and they are doing a good job.”
“While there have been violations that have resulted from the WVDEP’s inspection of this pipeline, these violations have been corrected quickly,” Justice said.

The governor said his administration would “continue to monitor these proceedings closely to determine what role the state may play expediting the construction of this pipeline.”
In early July, the Corps of Engineers rewrote its approval of the pipeline to essentially waive the 72-hour time limit on the river crossing construction. In a court filing, Corps lawyers defended the move, saying the alternative of digging a trench for the pipeline without diverting water flow would cause more environmental damage.

And just this Wednesday, the DEP released a proposal to exempt the stream-crossing method Mountain Valley Pipeline proposed from the 72-hour limit.

Environmental groups said the agencies could instead push MVP to use a more conventional method to bore under the rivers, perhaps reducing the effects.

All sides are now waiting for the court to decide if the new Corps approval, revised to meet MVP’s needs, is enough to lift the stay of the Clean Water Act permit.

Extending Time to Cut Trees

When MVP developers told three federal judges in early 2018 that they needed access to private property to build the pipeline, their lawyers argued that they needed it quickly.
They were up against a strict March 31 deadline — the day federally protected, threatened or endangered bats come out of hibernation in certain areas along the pipeline route, and roost in the trees.

If developers didn’t start cutting down trees quickly, they’d miss that deadline, and they’d have to wait to clear trees until November, MVP developers said in court.

That would have pushed the project’s finish date past the end of 2018, its goal, costing the company hundreds of millions in lost revenue and termination clauses, the project’s senior vice president of engineering and construction testified in court hearings when the pipeline developers sued landowners to secure easements through eminent domain. The landowners were not willing to sell on their own, forcing developers to go to court.

The landowners urged MVP to slow down, but within weeks of each hearing, judges granted possession of the land, allowing developers to start clearing trees. Two of three judges mentioned the bats in their decisions to allow construction on private property.

But March 31 came and went, and MVP hadn’t cut down all the trees it needed along the route. So lawyers asked FERC to extend that March 31 deadline by two months, to allow them to cut down trees on a small portion of the Jefferson National Forest. Tree-sitting protesters had delayed the company’s logging, MVP lawyers told FERC, and the small area of the national forest they wanted to work in was not believed to be home to any of the threatened or endangered bats.

The U.S. Fish and Wildlife Service, whose job is to protect threatened or endangered species, signed off on an extension for MVP to cut trees in the national forest, so long as it was finished by May 31.
“If there is a desire to extend tree clearing past May 31, that answer would change,” Troy Andersen, a supervisory Fish & Wildlife biologist, wrote in an email to the Forest Service, which MVP later filed with FERC.

FERC granted that extension.

In June, MVP asked FERC for another extension, complaining that “obstructionists continued to prohibit Mountain Valley from felling the trees” by the deadline, and asking to keep working through July 31. FERC approved the request. The 4th circuit decision on July 27 put a halt to construction in the Jefferson National Forest, four days before the deadline. At that point, trees had mostly been cut down but hadn’t been cleared from the road. According to the most recent construction status report filed with FERC on July 26, tree-cutting was still in progress, but not entirely finished. As of Friday morning, MVP hadn’t asked for an extension.

“This may seem to be just a minor adjustment allowing them to tree cut until the end of July,” said Bill Price, field organizing manager for the Sierra Club, “but the impact of that to the habitat in the area, I don’t know anyone knows for sure.”

The federal agency also has approved other requests by the MVP developers that residents along the route say affect their quality of life in more straightforward ways.

In recent weeks, residents fought a request for FERC to extend the construction day until as late as 9 p.m. Letters poured in from residents, organizations and county governments, urging FERC to turn it down. Extending construction would create more noise and more workers on the road while commuters try to get to and from work, they said. Longer hours would mean tired, and careless, workers. And, residents said, it was just another example of developers rewriting the rules to make things more convenient for them.

It’s enough that crews have to work during the day, said David Werner, who lives on the pipeline’s route in neighboring Virginia. He was one of the dozens who wrote to FERC, urging the commission to reject the proposal. If construction continues until dark, it disrupts his ability to play ball with his four grandkids or keeps him from sitting on his porch and enjoying the quiet.

FERC approved the request over the residents’ objections.

“They’re already working weekends,” Werner said in an interview. “Now they want to expand well beyond that. They’re violating what they said they were going to do.”

On Wednesday, Jarrell was back on his all-terrain vehicle, weaving through the construction area, which has been mostly abandoned since FERC’s stop-work order. Other than a few workers stabilizing the construction sites — per FERC’s order — Summers County was quiet again.
Jarrell doesn’t think it’ll last.

“They just don’t care, because there’s so much money at stake,” he said. “It’ll get built, no matter what.”

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Sunday, August 5, 2018

Kris Kobach’s Lucrative Trail of Courtroom Defeats

by Jessica Huseman and Blake Paterson, ProPublica, and Bryan Lowry and Hunter Woodall, The Kansas City Star

Kris Kobach likes to tout his work for Valley Park, Missouri. He has boasted on cable TV about crafting and defending the town’s hardline anti-immigration ordinance. He discussed his “victory” there at length on his old radio show. He still lists it on his resume.

But “victory” isn’t the word most Valley Park residents would use to describe the results of Kobach’s work. With his help, the town of 7,000 passed an ordinance in 2006 that punished employers for hiring illegal immigrants and landlords for renting to them. But after two years of litigation and nearly $300,000 in expenses, the ordinance was largely gutted. Now, it is illegal only to “knowingly” hire illegal immigrants there — something that was already illegal under federal law. The town’s attorney can’t recall a single case brought under the ordinance.

“Ambulance chasing” is how Grant Young, a former mayor of Valley Park, describes Kobach’s role. Young characterized Kobach’s attitude as, “Let’s find a town that’s got some issues or pretends to have some issues, let’s drum up an immigration problem and maybe I can advance my political position, my political thinking and maybe make some money at the same time.”
Kobach used his work in Valley Park to attract other clients, with sometimes disastrous effects on the municipalities. The towns — some with budgets in the single-digit-millions — ran up hefty legal costs after hiring him to defend similar ordinances. Farmers Branch, Texas, wound up owing $7 million in legal bills. Hazleton, Penn., took on debt to pay $1.4 million and eventually had to file for a state bailout. In Fremont, Neb., the city raised property taxes to pay for Kobach’s services. None of the towns are currently enforcing the laws he helped craft.

“This sounds a little bit to me like Harold Hill in ‘The Music Man,’” said Larry Dessem, a law professor at the University of Missouri who focuses on legal ethics. “Got a problem here in River City and we can solve it if you buy the band instruments from me. He is selling something that goes well beyond legal services.”

Kobach rode the attention the cases generated to political prominence, first as Kansas secretary of state, and now as a candidate for governor in the Republican primary on Aug. 7. He also earned more than $800,000 for his immigration work, paid by both towns and an advocacy group, over 13 years.

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