By David J. Hayes
July 9, 2020
With the Atlantic Coast Pipeline cancelled, and courts holding up the Dakota Access and Keystone XL pipelines for environmental transgressions, the blowback messaging was predictable: lefty environmentalists, taking advantage of unnecessarily burdensome environmental laws, are to blame. As Energy Secretary Brouillette put it: “the well-funded, obstructionist environmental lobby ... killed” the Atlantic Coast Pipeline. The head of the American Petroleum Institute piled on, criticizing “outdated and convoluted permitting rules” that have “open[ed] the door for a barrage of baseless, activist-led litigation.” Others griped that “you can’t build anything big in energy infrastructure.”
Don’t believe these pipeline platitudes.
The Atlantic Coast, Dakota Access and Keystone XL pipelines all had fatal flaws, borne largely from poor decisions made by their sponsors. In each case, corporate backers used political pressure to try to paper over their failures to forthrightly address environmental issues that were serious, rooted in the law, and of grave concern to affected citizens.
The Atlantic Coast Pipeline started off on the wrong foot by failing to make a compelling case for the multibillion dollar project. The Federal Energy Regulatory Commission (FERC) shares some of this blame. Without undertaking any meaningful economic or environmental evaluation, FERC glibly concluded a “need” for and “public interest” in the project. It was enough for FERC that Dominion provided an assurance from its corporate affiliates that there was a market for the gas. Neither Dominion nor FERC engaged in a serious analysis of alternative ways to meet long-term regional energy needs, despite the cost-competitiveness and clear climate superiority of clean energy options. As a result, Dominion earned public distrust from the outset, as well as early legal challenges under the Natural Gas Act and the National Environmental Policy Act.
But that was just the start. Once FERC issued its thin “go” decision — which, by the way, enabled Dominion to begin the process of condemning land along the pipeline route — Dominion plowed forward, pressing federal and state officials to make quick work of the multiple environmental issues associated with building a 600-mile-long pipeline over the Appalachian Mountains, crossing hundreds of streams, and traveling through scores of communities and sensitive landscapes. In a remarkable trio of decisions, the Fourth Circuit Court of Appeals rebuked Dominion for its pressure campaign, as well as the federal and state officials that fell prey to it, including (1) the U.S. Forest Service for “suddenly, and mysteriously” dropping its “grim” view of environmental problems with a permit application “in time to meet a private pipeline company’s deadlines”; (2) the U.S. Fish & Wildlife Service for “los[ing] sight of its mandate” to protect the environment as it gave short shrift to serious endangered species issues; and (3) Virginia air pollution officials for their failure to follow the law and consider the adverse health impacts that a pipeline compressor station would have on a predominantly African American and low income community. This is the story of a corporate bully that was used to getting its way and did not take environmental compliance and environmental justice issues seriously.
Similarly, proponents of the Dakota Access and Keystone XL pipelines made poor, politically-motivated decisions that backfired on them.
In the case of the Dakota Access pipeline, the Standing Rock Sioux and the Cheyenne River Sioux Tribes complained from the very outset that the environmental assessment completed for the pipeline failed to take into account potential adverse impacts that the pipeline might have on their primary water supply and nearby tribal lands. Rather than complete a full environmental impact statement (EIS) that would analyze these, and related, concerns of the tribes (including potential impacts on tribal treaty rights and environmental justice considerations), the pipeline owner chose to defend a flimsy environmental assessment that completely neglected tribal concerns. The federal court showed enormous patience through several rounds of litigation, but finally had enough, ruling that the owners’ failure to prepare an EIS for the project was a “very serious deficiency.”
The Keystone XL pipeline’s backers turned to a political short-cut — petitioning the incoming Trump administration for help — in an effort to make its environmental difficulties go away. Within days of taking office, President Trump reversed the Obama administration’s disapproval of the pipeline, and issued a Presidential Memorandum that explicitly ordered the Army Corps of Engineers to “approve ... in an expedited manner, requests ... to utilize Nationwide Permit 12 for [Keystone XL] pipeline stream crossings.” In its rush to update that permit per the President’s direction, the Corps made a deliberate decision to skip the required Endangered Species Act consultation that must accompany the permit, despite being “well aware” of its obligation to do so. Given the egregious omission, the court had little choice but to invalidate the permit. And, tellingly, the Supreme Court declined this week to allow the pipeline to rely on the clearly defective permit. Once again, short-sighted decisions to apply political pressure and take legal shortcuts stopped — and may have doomed — the Keystone XL pipeline.
So don’t point to these pipelines as examples of environmental requirements run amok. To the contrary, they are powerful reminders that project sponsors should anticipate and forthrightly address the concerns of key stakeholders, help permitting authorities do their job, and comply with the law.
David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.