Will Clean Energy Projects Face Troubles That Have Bedeviled Pipelines?
Op-eds & Essays by Jason Bordoff • July 20, 2020
This month, environmentalists celebrated setbacks to three major oil and gas pipelines, nearly a decade after the protests against the Keystone XL pipeline began. Yet what goes around can come around. Legal strategies that have derailed pipelines can also be turned against clean energy projects urgently needed to combat climate change.
The path forward is not to gut the environmental review process, as President Trump proposed last week. Rather, the government must make the permitting process work better if it is to quickly develop renewable energy projects and improve the grid infrastructure while upholding the nation’s landmark environmental laws.
This is especially important now. With no time to delay in combating climate change, and the economy in need of a boost, we need large government investment in clean energy infrastructure from electric car charging to mass transit and rail, as former Vice President Joe Biden proposed last week.
The three pipeline cases followed a boom in oil and gas output in the United States over the past decade. Environmental groups have developed sophisticated legal strategies to block the pipelines that get fuel to market. Major pipeline projects usually require federal permits, such as when they cross certain water bodies, wetlands or public lands. But before those permits can be issued, federal law requires the government to conduct a review of the project’s environmental impacts. This process has become increasingly expensive, time consuming and susceptible to litigation, especially for large energy infrastructure projects.
The recent pipeline setbacks occurred, among other reasons, because the courts found that the Trump administration’s environmental reviews cut corners. Its effort to fast-track projects in the name of “energy dominance” came back to bite the very projects it was meant to help.
First, a Montana court ruled in the Keystone XL pipeline litigation that the federal government had failed to properly consult on threatened and endangered species when it reauthorized a program to streamline water permits. The Supreme Court then rejected a request from the Trump administration to allow construction of parts of the pipeline that had been blocked by the judge.
In addition, two of the nation’s largest utilities announced they were abandoning plans to build a 600-mile natural gas pipeline crossing the Appalachian Trail because of rising costs, ongoing delays and regulatory uncertainty arising from the Montana ruling. And that was followed by a federal court ordering another high-profile oil pipeline, the Dakota Access project, which has been a focus of protests from Native Americans and environmentalists, to shut down pending revisions to an environmental review that the court found to be deficient, an order since stayed pending appeal.
These pipeline defeats reflect an increasingly sophisticated legal strategy to use complex environmental laws designed to protect public lands, water, endangered species and air quality to block fossil fuels projects based on flaws in environmental reviews and regulatory approvals. Yet those very tactics can now be used to impede clean energy projects, which have impacts as well. For example, solar projects sited in the deserts of Western states may affect the habitat of the endangered desert tortoise. Commercial fishermen in the Northeast have opposed offshore wind projects they claim will interfere with their fisheries.
Delay is problematic not only because time is short to curb emissions, but also because the need for large government spending to boost an economy reeling from Covid-19 shutdowns may create a unique opportunity to invest in clean energy. The very nature of economic stimulus means the faster funds can be deployed, the more effective they can be.
The Trump administration’s approach of shortcutting environmental reviews and avoiding meaningful community engagement has been self-defeating. His so-called reforms — which would set arbitrary time limits, exclude from review certain project impacts such as climate change, and give short shrift to input from local communities — are misguided and provide grist for years of litigation.
The environmental review process needs to be improved, but not by cutting corners. There is no simple solution, but there are several actions the federal government can take. First, more should be done to invest the resources necessary and use the authorities available under the FAST Act of 2015 to achieve the law’s aim to improve coordination among federal agencies on major infrastructure projects, hold them accountable to reasonable timetables, and track progress. Second, to see the full consequences of environmental impacts, environmental benefits of clean energy projects like lower emissions should be considered along with potential harms. Finally, communities near these projects should be included to address concerns, develop solutions and defuse opposition.
Environmental activists will view the legal blows landed on pipelines as a victory. But if the federal environmental review and permitting processes that stymied those projects are not improved, the massive clean energy investments required to transform our energy economy may fall victim next.
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Op-eds & Essays by Jason Bordoff • July 20, 2020