Environmental activists are successfully using the courts to stymie the Trump administration’s “energy dominance” agenda, especially oil and natural gas pipelines, with the latest example being a federal judge last week blocking the long-disputed Keystone XL pipeline.
“This is emblematic of the very orchestrated effort being made to stop energy infrastructure of all kinds,” Don Santa, the president and CEO of the Interstate Natural Gas Association of America, told the Washington Examiner. “Pipeline opponents are seizing on every possible opportunity to throw a monkey wrench into the gears of getting these facilities approved.”
But opponents say courts should be giving greater scrutiny to pipeline approvals because such projects lock in a dependence on fossil fuels, due to their long lifespan.
“The real element that is changing is not the legal issue around abiding by review processes, but the increasing burden of proof these projects face to show they are environmentally sound,” Anthony Swift, the director of the National Resources Defense Council’s Canada program, told the Washington Examiner.
Environmental activists scored a win last week when U.S. District Court Judge Brian Morris blocked the construction of the $8 billion Keystone XL pipeline, which President Trump had approved in one of his first actions as president. Morris, an Obama appointee to the District Court of Montana, ruled late Thursday night that the administration’s environmental analysis fell short, and ordered the pipeline to be halted until the federal government completes further reviews. The judge said the Trump administration had not provided a “reasoned explanation” for reversing former President Barack Obama’s rejection of the pipeline’s permit.
Morris also said the Trump administration “simply discarded” the effect the pipeline would have on climate change. The 1,179-mile Keystone XL pipeline would send 800,000 barrels a day of oil from Canada’s Alberta oil sands to Steele City, Neb., and then on to refineries along the Gulf Coast. But it has been challenged by environmental advocates worried about spills and climate change. Environmental groups had sued both TransCanada, the company building the pipeline, and the State Department over the pipeline’s approval.
The State Department considered the application for seven years before Obama rejected it in November 2015, a month before signing the Paris climate change agreement. The Trump administration’s State Department granted a cross-border permit in March.
TransCanada had not officially made a decision on whether to commit to investing in the project, as it debates whether it’s still economically viable for the company after years of delays.
Still, the developer had hoped to begin preliminary work this fall on the pipeline in Montana before starting construction in 2019.
Morris’ decision blocking the pipeline, which Trump called “political” and a “disgrace”, follows a common theme that has haunted his goals of rolling back Obama-era environmental regulations and more quickly building energy infrastructure projects.
Judges have frequently found the Trump administration has not always followed proper legal procedures and laws to unwind regulations, and has failed to justify its actions with science-based facts, as required by the Administrative Procedures Act. On the energy infrastructure front, federal judges have delayed the building of two major natural gas pipeline projects this year in response to legal challenges, rejecting permits for the Atlantic Coast and and Mountain Valley Pipelines.
These projects are supposed to deliver gas, not oil, as Keystone XL would, meaning they face a different regulatory process, led by the Federal Energy Regulatory Commission.
Dominion Energy’s 600-mile, $5.1 billion Atlantic Coast Pipeline has been fiercely contested, facing local opposition in both states that would receive natural gas carried by it: Virginia and North Carolina. The 303-mile, $3.5 billion Mountain Valley Pipeline, developed by Pittsburgh-based EQT Corp. and partners, would carry shale natural gas from West Virginia to southern Virginia.
“The Keystone decision offers the latest example of the courts making it clear that pipeline approval processes and environmental reviews cannot be treated as rubber stamp processes,” Swift said. “They serve a real purpose, and courts require agencies considering projects to meet those legal standards.”
These court decisions could hinder a larger Trump administration push to speed up infrastructure projects by expediting the environmental review process.
Federal agencies are in the process of implementing an executive order Trump issued last year calling for “timely decisions” on projects, with the goal of completing “environmental reviews and authorization decisions for major infrastructure projects within two years.”
Under the agreement implementing the order, federal agencies will have to conduct environmental reviews at the same time, rather than doing consecutive reviews, to speed up the process.
The administration has also proposed changes in how the government conducts the reviews, including streamlining the National Environmental Policy Act’s requirements and potential changes to the Clean Water and Clean Air acts. Trump aims to reduce the time a state has to issue water permits required under the Clean Water Act to build interstate natural gas pipelines.
Environmental officials in states such as New York have used that provision to halt pipeline projects, to the consternation of the energy industry.
But these changes require cooperation by Democrats in Congress, who say “streamlining” would harm protections for natural habitat and endangered species.
That’s not all of the changes Trump seeks.
His administration wants to limit court injunctions against projects to “exceptional” circumstances, according to its infrastructure investment proposal released in February, which provided little more detail on what that means.
Santa says Trump should proceed cautiously.
“You still need to be bulletproof with your analysis,” Santa said. “You need a strong, reasoned justification not only to issue new regulations, but also to scale back regulations to satisfy the courts. Activist groups are always looking for that chink the armor.”
