Recent court decisions have stymied the Trump Administration’s determination to accelerate permit approvals for oil and gas infrastructure projects, a policy focus since it came into office. Its tools have essentially been exhortatory executive orders and agency memoranda, and have been received by the environmental community with horror.
They warned that the environmental reviews the Administration sought to short cut are required by statute and cannot be avoided without congressional action. The result has been not accelerated construction, but rather a flurry of lawsuits that, successful or not, have served to delay and increase the cost of the projects.
This Supreme Court term has provided object lessons in the risks of the Administration’s approach. Earlier this year, the Court overturned a decision by the 4th Circuit Court of Appeals preventing the Atlantic Coast Pipeline from crossing the Appalachian Trail. However, far from congratulatory parties, that victory was followed by a decision by Dominion and Duke Energy, the project sponsors, to cancel the project altogether, citing the increased costs and likelihood of further permitting and litigation delays.
The Keystone Pipeline, which has been tied up in litigation since before this Administration, ran into further problems when a Montana district court disallowed the use of a nationwide Army Corps permit, initially issuing a nation-wide ban on use of that expedited permit process. The Supreme Court on interim review, ended the nation-wide ban, but continued the application of the lower court’s order to the Keystone Pipeline itself, assuring additional months if not years of delay. The fact that the Supreme Court left the ban in place for the Keystone places other pipelines using that nationwide permit at risk of their own adverse outcome in litigation.
For the Dakota Access Pipeline, which has already been completed, a district court found that the government’s environmental review was inadequate, and in a highly unusual step directed the company to drain and cease use of the pipeline by early August.
Not all pipeline construction has stopped. But the take away message appears to be that there are no magic words from politicos and bureaucrats that can sweep away the need to walk carefully through environmental review processes, making connections with tribes, affected communities and environmental groups to assure their interests are recognized. Failure to do so can be a streamlined route to court, and not a completed project.