On Monday, federal courts faced major setbacks to the controversial Dakota Access and Keystone XL pipelines. The two decisions came immediately after an announcement that energy service companies were abandoning another high-profile project: the Atlantic Coast pipeline, which would have crossed below the Appalachian Trail. Together, these developments amount to an impressive victory for environmental defenders and the tribes who have challenged these projects in court for a long time, and are just the latest obstacles to the Trump Administration’s “energy dominance” agenda, which It has tried to accelerate fossil fuel projects in an era of climate change. But how, exactly, did all this happen, and consecutively? The reason the pipelines have failed is mainly due to legal errors and damaging project approvals. It is a bureaucratic failure rather than any kind of political directive.
The Dakota Access Pipeline is a prime example of how rushing legal requirements has failed for federal agencies during the Trump Administration. After the Administration’s efforts to speed up the permitting process, the pipeline was completed in 2017, but legal challenges plagued the project even after oil started to flow. Led by the Standing Rock Sioux, advocates mounted a successful challenge under the National Environmental Policy Act (NEPA), which requires all federally approved projects to “pay attention” to environmental effects before a project is completed.
In March, a federal district court ruled that the Trump Administration had failed to properly assess the project’s risks as required by NEPA, such as the threats it posed to Lake Oahe, under which the pipeline runs directly. On Monday, the same court concluded that operations of the pipeline (moving up to 570,000 barrels of oil per day) must cease and the pipeline must be emptied of oil by August 5. Meanwhile, the agency will carry out the required environmental review, a process expected to take up to a year to complete.
Dakota Access’s decision summarizes how long-standing laws like NEPA, while sometimes unfairly criticized for requiring a cumbersome “bureaucracy,” are sometimes all that prevents ill-conceived or risky projects from jeopardizing vital public resources such as clean drinking water. The government erred in rushing through the NEPA process, giving up the careful environmental review required by law. The court found that the agency’s initial analysis was so severely lacking that the “potential damage each day the pipeline operates” outweighed concerns about “the disruption that such a closure will cause.” The agency will now prepare a new analysis, and the proposed timeline means the pipeline’s final destination is uncertain, especially considering the November election. A new Biden administration may decide not to reissue the project authorizations and stop it altogether.
The Trump Administration is seeking to curtail the NEPA environmental review process entirely, through new regulations. But these regulations do not alter the existing NEPA statute, so the Administration’s effort may backfire. Under the Trump administration, certain agencies have begun to forgo a full assessment of environmental effects, especially the effects of climate change, but the old rules have not yet been repealed. This can have high costs. For example, federal courts recently found that the Department of the Interior’s analysis of climate change and the effects of groundwater on federal oil and gas lease sales is flawed, leading to delays and cancellations of the lease sale . Other projects that use the new regulations as an excuse to ignore NEPA requirements could face a similar fate.
Environmental defenders have a number of avenues for challenging projects, and many of these strategies are increasingly working due to government need. neglect
Environmental advocates have a number of avenues for challenging projects, and many of these strategies increasingly work due to government negligence. In April, a federal district court revoked the general federal permitting authority for pipelines and power lines to cross bodies of water and wetlands. The court ruled that the Army Corps of Engineers made a mistake by waiving the required consultation of the Endangered Species Act before reauthorizing the national permit in 2017, and voided the national permit until the agency completes the consultation process. Ultimately, this is what stopped the Keystone XL pipeline: On Monday, the US Supreme Court left the current district court order regarding Keystone, refusing to allow construction to begin on the project. The court allowed the Army Corps to resume issuing permits for other oil and gas pipelines while legal issues are resolved.
The cumulative effects of these legal challenges are increasing. Due in part to the risk of ongoing litigation and delays, Dominion and Duke Energy announced this week that they will cancel the 600-mile Atlantic Coast Pipeline, which would have been tunneled under the Appalachian Trail on its route from West Virginia to Carolina. North. The cancellation is especially notable as it follows a favorable Supreme Court decision in June defending the project’s right-of-way to be built under the Appalachian Trail. But utility companies said the $ 8 billion project had become too expensive and still faces multiple legal risks, including with respect to the permitting authority in question at Keystone XL. Even more surprising, Dominion seems to see the writing on the wall regarding natural gas infrastructure in general. It announced this week that it will sell all of its natural gas transmission and storage operations.
Together, these groundbreaking business and legal decisions mark a turning point for long-standing defense against pipelines and other fossil fuel infrastructure. And although they do not represent any kind of change of opinion in the federal government, they can be understood as examples of the laws that we already had on the books, and that work particularly well in the face of incompetence. They also serve as a harbinger of future costly results, especially when agencies and project proponents cut corners instead of fully analyzing environmental effects and involving the public in decision-making.
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