Tree protesters blocking Mountain Valley Pipeline are engaged in peaceful, but unlawful action

Regardless of your position on the proposed Mountain Valley Pipeline, you have to admire the fortitude of the protesters who are encamped in two trees high in the mountains of Monroe County trying to block the project.  In an era of cheap talk, these protesters are backing up their words with action.

(Read more about the protest from Brad McElhinny.) 

America has a long history of civil disobedience.  William DePaulo, an attorney for the protesters, during an interview on Talkline cited the inspiration of Henry David Thoreau and his essay on the power of peaceful resistance.

However, we are also a nation of laws, and the co-existence of a diverse population with myriad interests depends on adherence to, and enforcement of, those laws.

First, there is the matter that the proposed 303-mile long natural gas pipeline running from Wetzel County, West Virginia, to Pittsylvania County, Virginia, has met the necessary regulatory requirements. The Federal Energy Regulatory Commission (FERC), the U.S. Bureau of Land Management and the U.S. Forest Service have all given their approval.

Opponents raised a series of objections, ranging from whether there is a market for the gas to how Mountain Valley Pipeline has dealt with the landowners along the route. In each case, FERC has ruled that the builder has done its due diligence.

Of course some property owners are upset because they don’t want a 42-inch gas line running through their land. That’s understandable, but FERC concluded, “We find that Mountain Valley has generally taken sufficient steps to minimize adverse impacts on landowners and surrounding communities.

Opponents have also questioned how a private entity can use eminent domain to force reluctant landowners to grant a right-of-way. The answer is found in federal law; 15 U.S. Code 717f(h) says that once FERC issues a “certificate of public convenience and necessity,” the builder may use eminent domain if it cannot come to terms with the property owner.

This provision is essential to the economic well-being of the nation. Without it, development of safe and reliable energy transport in the country would grind to a halt.

Additionally, the tree-sitting protesters—if they are still there after this past weekend’s brutal weather, which dropped another foot of snow on the mountaintop—are violating the rules  of Jefferson National Forest, where they are located.

Camping is limited to 21 consecutive days, but the protesters have been in the trees for a month. Also, the wooden platforms the protesters are using may violate Forest Service rules that only allow tree stands “as long as they are not affixed.”

The protesters and their supporters may scoff at these technicalities, but they have used a similar strategy in court.  DePaulo successfully obfuscated the legality of the tree protesters by bogging down the court in the minutiae of possible rounding errors in pipeline surveys, leaving Monroe County Judge Robert Irons flummoxed to the point that, after a three-hour hearing, he declined to issue a court order removing the protesters.

That was a mistake by the judge. The tree-sitters’ devotion to their cause aside, their activity is clearly unlawful.  It’s also notable that Mountain Valley Pipeline is trying to meet a March 31 deadline for felling trees along that section of the route to lessen the impact on migrating birds and bats.

The authorities need to step up their efforts to get the protesters out of the trees so the permitted work to build the pipeline can continue. The First Amendment protects the rights of individuals to protest, but it does not insulate those engaged in unlawful behavior from the consequences of their actions.





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