Environmentalist's Trifecta of Wins Against Pipelines

reaching regulatory reform in American history. We've approved longstalled projects like the Keystone Xcel and the Dakota Access pipelines. But those pipelines are stalled once again, and another major pipeline project is over This week, environmentalists are celebrating a trifecta of victories blocking major oil pipelines, as a court ordered the Dakota Access pipeline to shut down pending environmental review.

The Supreme Court refused to reinstate streamline permitting for the Keystone Excel pipeline, and developers of the Atlantic Coast Pipeline just called it quits. Joining me is Pat Parento, a professor of environmental law at the Vermont Law School. Pat this is the first time that a judge has ordered

a major oil and gas pipeline to shut down. I think it was surprising that Judge Boisberg, who is known as a judge who's sympathetic to environmental issues, but who you know, is not a sure thing when it comes

to rulings. He is issued ten different opinions in this Dakota Access pipeline case, most of them when in favor either of the government or the pipeline company, and so it was a big surprise that he took into account the disruptive effect of stopping the oil flowing through the pipeline while an environmental impact statement is done, which will take, by the Corps estimate thirteen months or more. But he said, oh,

I really don't think I have a choice. I warned the CORE that they were proceeding in haste and not taking into account the threats to the water supply of the Standing Rock Tribe and others where the pipeline was going to go under the Missouri River and under Lake Oahi, and that's the source of drainy water for the tribe and it's very close to the reservation. So even though he had told the CORE exactly what they needed to do to fix the problems with their analysis. They didn't

do it. Maybe because they're under the orders of the President to get this thing done and approved and over with. We don't know. But the point is the Jedge said, you didn't really leave me any option other than to just allow you to continue to thumb your nose at the law, other than to shut you down. So that's what I've done. So now. At the same time, the Supreme Court has agreed to reinstate a fast track water permitting program for pipelines across the country except for the

Keystone x L Yes, that's right. The Center for Biological Diversity and some tribes and some other environmental groups had sued challenging the construction of Keystone under this nationwide permit Number twelve. Judge Morris and Montana concluded that the nationwide permit that the Core of Engineers uses to authorize pipeline construction was illegal, and it was illegal because the Corps didn't consult with the Fish and Wildlife Service under the

Endangered Species Act. Because, of course, all of these pipelines across the country, there are thousands of miles of them. They do from time to time encounter endangered species habitat. And so Judge Morris said, your permits illegal. But he went further and said, because the nationwide permit itself is illegal, all of the construction that's relying on it should stop.

And that's what the Supreme Court said. No, we're not going to enjoin all pipeline construction across the country, but the injunction against Keystone will stand for now and for the trifecta here. And we talked about this case when it came before the Supreme Court. The Atlantic Coast Pipeline had just one a Supreme Court victory, but it's developers are pulling the plug on it. Yes, I mean, they're the cost of the pipeline or skyrocketing. The original estimate

was something like five billion, it's now eight billion. There are still three other injunctions against the Atlantic Coast Pipeline pending in the Fourth Circuit Court of Appeals. So yeah, so the developer finally just threw in the towel and

said we just can't absorb um these escalating costs. And of course, at the same time, there's a glut of gas on the market and with the unknown consequences of the coronavirus pandemic in its economic fallout, it's not clear when you know that market demand is going to rebound. So the backers of this project, of financiers of this projects are concluding it's just too big a risk and

it just isn't as profitable as that once looked. And it's a real interesting point here that you mentioned the trifecta, with these three huge decisions affecting major pipelines coming within days almost of each other, and all of them related to legal problems that frankly are a result of the Trump administration's determination to ram rod these projects through the law, and the federal courts are stopping them left and right.

Market forces are contributing to it, but the legal vulnerabilities of these projects is a big reason why they're collapsing. Is it because the environmentalists who have been bringing these actions have been smart about where to bring them, have used a specific strategy, or is it just that the Trump administration hasn't been following the law. It's both. I mean, clearly, the courts are finding in case after case that the

administration is not following the law. And again, these laws, like the National Environmental Policy Act have been on the books for fifty years. Um. So it's not anything new that the courts are coming up with. They're simply saying, the law is really clear here, and you're simply not following it. Um. And in part because you're getting a direction from the White House to accelerate these energy projects. Um, damn the torpedoes and damn the law kind of process.

And that's really the major reason. The environmental groups have been smart in picking their targets and making their arguments. But frankly, I think the Trump administration is losing these cases more than the environmentalists are winning them. There was always this idea, not in law, but this idea that courts would never shut down pipelines that were in service. Now that we have this decision, well, it's fuel litigation

against existing pipelines, I don't think so. I think the environmentalists here have been smart and strategic in going after, for the most part, these major projects. I mean, Keystone again is importing some of the dirtiest fuel on the planet from the baking crude oil sources in Canada. UM. And so the targets so far I think have been chosen because they do represent a major investment in fossil fuel infrastructure. That's of course driving the climate crisis more

so than just suing on every single pipeline everywhere. I mean, there are you know, a lot of pipelines in service that are not being sued against. The n Bridge line number three is another big one coming down out of Canada and through the Upper Midwest, and that's very much in litigation. But I'm not seeing that, you know, environmental groups or local groups are suing and every single pipeline in the country that's that doesn't seem to be happening.

What is it with the Army Corps of Engineers? Have they always been so? It seems slipshod in the way they perform these environmental reviews. No. In fact, the Corp of Engineers has a pretty good track record defending their permit decisions before the Trump administration. Not to say they have haven't lost they they they do occasionally lose these cases, but nothing like what we're seeing now. Um And I don't think the professional staff of the Corps of Engineers

is the problem. I think it's the political appointees above them. Remember that the Corp of Engineers as part of the Department of Defense and the Department of the Army. And so by the time you get way down into the rank and file career people in the Corps of Engineers, they're being erected what to do. It is very much a hierarchical military style organization the core of engineers. So when they get directions from above, even if they don't

like them, they'll follow them. Um and in these cases, they're following them right into an injunction with the Dakota Access pipeline. I recall, I'm sure most listeners recall that there were protests that went on for months at the site, you know, supporting the American Indian tribes and even support from celebrities. And this is also being looked at as not just environmental justice win, but a social justice win. Yes,

that's true. Yes, I mean, you know, you're talking about you know, Indian reservations, the Sioux tribes in the Dakotas, with some of the highest unemployment rates in the country, the worst public health services in the country, they're suffering disproportionately from the coronavirus pandemic as well as many other

environmental impacts. And um, you know, so there's we're watching the result of the Black Lives Matter movement, but it's now beginning to incorporate the rights of Indigenous people and

the and the problems that they're suffering. So the Dakota Access Pipeline has more to do with the direct impacts on their water supply and the and the judgment you know, basically said your analysis of what would happen if there was a spill from this pipeline, and of course pipelines do spill frequently, um your ability to detect that spill, to correct it, to stop it, to protect that water supply.

It's your analysis just as two weak, and it's been criticized by a number of experts once you put it out for public comment, and yet you didn't on to the criticisms You've got. All of that is systematic with regard to the way facilities are cited in minority communities, including tribal uh communities, and their their rights, both their

sovereign rights. In some of cases these reservations have the rights of a sovereign are not being respected, they're not being consulted in the way they should be, and so forth. So Dakota Access Pipeline has all kinds of elements it's got climate change, it's got environmental justice, it's got legal compliance with the National Environmental Policy Act issues, It's got

a whole mix of things going on. Are there any other pipeline projects around the country that have social justice issues that you can name or or you're just talking in general? I think Enbridge Line number three is it's called that up in Minnesota is being opposed by um tribal interests because it's crossing reservation lands, it's affecting some of their wetlands and streams that they are part of their their natural resource base for some of these communities,

fisheries and so forth. So that that's one that certainly combines a number of these environmental justice issues. The the Atlantic Coast Pipeline did as well, because they were going to put a compressor station for the pipeline in a black community in Virginia. And now that that pipeline has been scrapped, of course that compressor station won't be built. But that was another element of the fight over the

Atlantic Coast Pipeline. Thanks for being on the Bloomberg Law Show. Pat, as always, that's Pat Parento, a professor at the Vermont Law School, and that's it for this edition of Bloomberg Law. Remember you can always get the latest legal news are Bloomberg Law podcast You can find them on iTunes, SoundCloud, or if Bloomberg dot com slash Podcasts slash Law. I'm

June Grosso. Thanks for listening, and remember to tune to The Bloomberg Law Show every weeknight at Champion Eastern right here on Bloomberg Radio