It’s common to say that something is “stuck in the pipeline,” by which we mean “held up in the bogged-down bureaucratic process.” But what do we say when a pipeline is stuck in the pipeline? I don’t know, but we sure have a problem with that.
The pipeline permitting process has become one of the most frustrating and exhausting endeavors anyone can get involved with in the United States. Proposed pipeline projects go through many levels of regulatory reviews over where they are sited and whether they pose potential environmental problems or threats to endangered species. Those issues certainly need to be addressed, but the problem is the system we have today requires them to be addressed over and over again. It seems as though no decision by a regulatory agency or court is ever final. It just leads to another appeal, or a new lawsuit is filed once construction is initiated.
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The system is broken. Repeated delays and stoppages drive up the costs of many pipeline projects and force some to be abandoned altogether. Those with the funding to sit and wait for the courts and regulatory agencies to work out their differences often have to do so for years.
This is unsustainable. A pipeline is a system that crosses many state and local jurisdictions. It cannot function in part — it must be completed from end to end before it becomes useful.
The need for federal intervention is clear. The regulatory process could be streamlined while still giving opponents sufficient avenues to register their objections and without cutting off public debate. Different regulatory agencies could work in parallel simultaneously to expedite the process. Specific time frames could be established. The regulatory process could have some sort of finality that would limit further review after all the issues have been addressed and administrative hurdles have been cleared. Criteria could be modified so that challenges could go forward only on issues not already considered.
Having environmental concerns voiced earlier would allow project designs to be modified earlier, which would be good for both sides. Regulatory agencies should be allowed to do their jobs thoroughly and efficiently. Currently, the process keeps getting stopped by delays and reconsiderations at the agency level and new litigation over the same issues. A uniform statute of limitations could be imposed to allow legal challenges to be filed in a timely manner while ultimately providing a clear bar to further litigation.
One project that has received much attention lately is the Mountain Valley Pipeline, which would transport natural gas from northwestern West Virginia to southern Virginia, a distance of more than 300 miles. Much of the pipeline already has been built, but key sections have been held up by regulatory and court hurdles. It was thrust into the national spotlight earlier this year when Sen. Joe Manchin (D-WV) made a “side deal” to get it through the Democratic-controlled Congress in exchange for his support for the Inflation Reduction Act. He had to drop his first effort to get his side deal through, but he reportedly is still working on it.
Manchin has argued that streamlining the permitting process is essential for national security and America’s energy independence, especially at a time when Russia’s war in Ukraine and manipulations by other oil-producing countries are a threat. His proposed reform would give the federal government more authority to handle the permitting of pipelines and transmission lines and shorten the time frames for reviews of such projects.
Manchin’s proposal has many critics, but many others see it as a rare chance for Congress to modernize the permitting process. Such an opportunity might not come around again soon, so it might be better to proceed with such a proposal, even if it is flawed, than to relegate the country to many more years of a moribund mechanism that serves no one well.
It’s not just natural gas or oil flowing through pipelines at issue here. Failure to reform the permitting process also could hinder the nation’s goals to use more renewable forms of energy. Solar farms, wind turbines, and hydroelectric plants need transmission lines to get their power to where it is needed, and that often means crossing state lines. If they face the same regulatory hurdles that pipelines are facing, then America’s energy future is in jeopardy.
Also, anyone who is inclined to think that curbing pipeline construction generally is better for the environment than permitting pipelines to be built should consider that natural gas and oil also can be transported by trucks and trains. That is more costly and less energy-efficient than pipelines, and pipelines are less likely to have accidents that cause serious damage than trucks and trains. In that sense, pipelines are a greener and cheaper option than their alternatives. Already, there is a network of pipelines crisscrossing the United States that, by and large, operate efficiently, cleanly, and cheaply.
For the sake of the nation’s security and energy future, as well as people’s pocketbooks, Congress should act soon to reform the regulatory process. We can’t afford to have our pipelines continue to get stuck in the permitting pipeline.
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Chuck Johnson is an attorney and member of the energy practice group at Frost Brown Todd in Charleston, West Virginia.
