Defending climate defenders opposing the Mountain Valley Pipeline
SUMMARY
On June 30, 2021, three climate defenders under the label of “Old Folks Resist” engaged in a protest against the Mountain Valley Pipeline project in Virginia, locking themselves down to a car on a mountain road in Roanoke County. The county police arrested Alan Moore, Deborah Kushner, and Bridget Kelley-Dearing. The “Old Folks” consciously engaged in civil disobedience and accepted a misdemeanor criminal conviction in August 2021.
More than six months later, in March 2022, Roanoke County filed a retaliatory lawsuit against these defenders, seeking more than $13,000 in claimed costs. Nearly all of this was not the actual costs of towing the vehicle, but pay for a total of 24 police officers who billed more than 278 hours of work for this one-day, nonviolent protest by three people. EarthRights believes this lawsuit is intended to overly penalize civil disobedience and send a message to other climate defenders, and we are representing the “Old Folks” in court.
The Mountain Valley Pipeline is a key element in entrenching dependence on fossil fuels for decades to come. The 300-mile-long, 42-inch pipeline, which would carry fracked gas from shale fields in West Virginia to existing pipelines, is primarily intended for exporting fossil gas. The Sierra Club estimates that the pipeline would be responsible for 89 million metric tons of carbon dioxide equivalent. The project passes through the Jefferson National Forest and underneath the Appalachian Trail and has been fined millions of dollars for environmental violations.
Trial in the case was originally set for July 2023. During the second half of July, however, Roanoke County, Virginia, dismissed its $13,000 retaliatory lawsuit against the three protestors, with the protestors paying only a $510 charge for towing the vehicle used as part of the protest.
Discovery in the case revealed that the County filed suit in hopes of “sending a message” that “MVP protesting will not be tolerated in the County, and that protesters will be responsible for costs incurred.” EarthRights International and Roanoke attorney Hyatt Browning Shirkey represented the protestors.
The protestors agreed to pay the actual costs of towing the vehicle, a mere $510. That was a small fraction of the County’s claim, which also included:
- Nearly $11,000 for the salaries of 24 police officers who billed more than 278 hours
- Over $1,800 in equipment
- Over $200 for food, including $125 for pizza.
The County ultimately dropped its demands for payment of all police time and equipment in dismissing its lawsuit.
BACKGROUND
The controversial Mountain Valley Pipeline project is a key element in entrenching dependence on fossil fuels for decades to come. The 300-mile-long, 42-inch pipeline, which would carry fracked gas from shale fields in West Virginia to existing pipelines, is primarily intended for exporting fossil gas.
The Sierra Club estimates that the pipeline would be responsible for 89 million metric tons of carbon dioxide equivalent at a time when experts agree that no new fossil fuel infrastructure is needed. The
The County of Roanoke v. Moore case is the latest iteration of efforts of local law enforcement to retaliate against pipeline protestors – efforts that EarthRights has previously successfully resisted. In April of 2022, a Minnesota state court ruled that police violated the legal rights of water protectors at the Line 3 pipeline when they blocked access to an Indigenous-led convergence space known as Namewag Camp. The ruling rebuked police officers’ attempts to unlawfully target protestors.
Additionally, there are legal questions raised by the specific violations that Roanoke County claims. They claim that the climate defenders violated a state statute regarding stopping vehicles on a public road. That statute, however, only provides that the County can charge the cost of towing the vehicle, and only in the case that the vehicle was stopped due to an emergency – which the County denies. (If a vehicle is stopped without an emergency, that is a criminal offense, but charging the cost of towing is not provided for.) The County also claims the climate defenders violated a County ordinance relating to “Unlawful disposal of rubbish or other waste material,” but that ordinance clearly requires 10 days’ advance notice before the costs of cleanup can be charged – notice that obviously was not given in this case. EarthRights believes these claims have no legal merit.
TIMELINE
2014
Mountain Valley Pipeline LLC (MVP) first announces that it is planning the Mountain Valley Pipeline project. In October, MVP begins a pre-filing process with the Federal Energy Regulatory Commission (FERC) for the proposed Mountain Valley Pipeline.
2015
In October, MVP files its formal application for approval with FERC.
2017
In October, MVP receives its FERC certificate for the pipeline, estimating construction would be completed by 2019.
2018
Construction of the pipeline project begins.
In February, Appalachians Against Pipelines forms as climate defenders engage in tree-sits in sites along the path of the pipeline project in West Virginia.
2019
Tree-sits and other actions against the pipeline continue in West Virginia and Virginia.
2020
Protests continue as well as project construction. The citizens’ monitoring group Mountain Valley Watch tallies over 600 violations associated with the construction.
2021
On June 30, climate defenders Alan Moore, Deborah Kushner, and Bridget Kelley-Dearing, under the label of “Old Folks Resist” engage in a protest against the pipeline in Roanoke County, Virginia, locking themselves down to a car on a mountain road. The county police arrested the defenders.
This action is one of multiple protests and civil disobedience actions against pipeline construction. In August, for example, 100 people engaged in an action at a pipeline construction site, including 10 climate defenders who locked themselves to construction equipment.
In August, the “Old Folks” accept a misdemeanor criminal conviction; the judge rejects the prosecutor’s request to require them to pay restitution.
2022
In January, a federal appeals court strikes down federal agencies’ permission for the pipeline to cross the Jefferson National Forest.
In February, the appeals court strikes down the federal government’s permission for the project under the Endangered Species Act.
On March 15, Roanoke County files a retaliatory lawsuit against the climate defenders, seeking more than $13,000 in claimed costs.
In June, the climate defenders ask the court to dismiss the lawsuit.
2023
By the spring, MVP states that construction work is 94% complete. Completion of the project remains stalled due to several court challenges. Critics charge that numerous water crossings, some of the most difficult parts of the construction project, still remain, so MVP’s figures are misleading.
In April, the federal appeals court invalidates the project’s federal water crossing permit.
In June, President Biden signs the “Fiscal Responsibility Act of 2023,” which raises the federal debt ceiling issues until 2025 but also includes provisions in which Congress attempts to expedite the permitting of the pipeline and bypass the court decisions striking down federal permits.
Trial was set for July 26-28, 2023. During this week, the County dropped its $13,000 retaliatory lawsuit in a $150 settlement, which the three protestors agreed to pay.
Disclosures in the case completely undermined the County’s position and showed that the lawsuit was a clear First Amendment violation. The County’s motive in filing the lawsuit, as documented in an email from the County Attorney, was “Sending a message that such unlawful and unsafe MVP protesting will not be tolerated in the County and that protesters will be responsible for costs incurred.” The same email warns that the media might “report that County police is aligned with MVP and is punishing elderly people who are trying to protect County citizens’ property rights (water quality, etc.).” The County admitted that it had never before filed a lawsuit like this, seeking to recover police officer time, even for much more serious crimes.
DOCUMENTS
County of Roanoke v. Moore Complaint (March 2022)
