Legal wrangling tying up fossil fuel projects could be used to target clean energy, too

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ICYMI: Energy Fairness Director Paul Griffin authored an article in the Des Moines Register pointing out that the misguided legal arguments used to stall pipeline projects could be used to hinder renewable energy projects as well. The original piece can be viewed here.

In a recent opinion in the New York Times, the director of Columbia University’s Center on Global Energy Policy, Jason Bordoff, warned renewable energy proponents that “what comes around goes around.” That’s because while activists today are using the courts to stifle fossil fuel projects, solar and wind could be in the cross-hairs tomorrow.

In recent months, activists have used a spate of federal court decisions to stymie U.S. Army Corps of Engineers permits for flagship U.S. domestic energy projects such as the Dakota Access Pipeline and Keystone XL. But while activists are cheering today, the sophisticated, but ultimately misguided, legal arguments used by environmental groups to stall these pipelines could also be used to hinder significant renewable energy proposals like solar and wind projects situated in sensitive environments.

The recent cancellation of the much-need Atlantic Coast Pipeline
 only deepens this troubling trend for U.S. energy. In the case of that pipeline, activists were able to manipulate the convoluted permitting process and the court system at the local, state, and federal levels to effectively force Dominion Energy and Duke Energy to cancel the project.

Had the infrastructure project been completed, it would have created more than 17,000 high-paying union jobs and generated up to $30 million in additional property tax revenue. Just as important, Virginia and North Carolina residents could have saved $377 million with cheaper energy from natural gas. With Americans reeling from COVID-19, shouldn’t we be doing everything possible to reduce financial burdens and open access to affordable, reliable, and clean energy?

While the cancellation of the Atlantic Coast project was a real setback for American energy, it pales in comparison to the recent federal court decision on the Dakota Access Pipeline. U.S. District Judge James Boasberg’s July 6 decision to vacate the project’s permits and empty the pipeline within 30 days is a crucial blow to a project that is already delivering massive benefits. Already in operation for three years, this $3.78 billion pipeline has increased North Dakota oil production by 50%, resulting in the safe delivery of 500,000 barrels per day of Bakken crude and generating more than $1.9 billion in labor income through the creation of 10,000 jobs.

These benefits came after one of the longest and most intensive environmental reviews in history, including more than 1,000 certificates, approvals, and permits from local, state, and federal authorities. This robust review was just part of the process of commencing the flow of U.S. domestic crude oil from the North Dakotan section of the Bakken Basin through Iowa to Illinois and refineries in the Gulf, a critical step in the U.S. maintaining its position as the world’s No. 1 producer of oil and gas.

The good news? The U.S. Court of Appeals for the D.C. Circuit intervenedand stayed the decision on Aug. 5, allowing the oil to continue to flow in the pipeline. However, the legal saga surrounding the Dakota Access Pipeline shows how easily activists can use the courts to block domestic energy projects and shut down key energy infrastructure projects already working to our nation’s benefit.

Activists are also now challenging the Nationwide Permitting 12 program, a streamlining process used by the Corps of Engineers to speed permits for pipeline and other utility construction activities that could impact ecosystems. Without the program, around 80 oil and gas pipeline projects could lose their permits, choking off access to critical energy supplies and slowing American momentum as a global energy leader.

For now, this important permit streamlining program remains on the books thanks to a Supreme Court ruling, but complications remain. For example, while the Supreme Court has stayed a Montana federal judge’s order to scrap the program, the decision inexplicably excluded the Keystone XL pipeline from its purview, a perplexing decision given that Keystone XL has passed six comprehensive environmental reviews by the State Department over the past decade. If this project, one that would support 40,000 American jobs, can be lost through judicial activism, all pipelines could face similar danger.

To keep American energy leading the world, we need more pipelines, not more legal roadblocks. Plus, while activists are targeting fossil fuels today, they won’t stop there. Renewable projects, many of which are located in sensitive ecosystems, are sure to be next.

We can’t afford to allow important infrastructure projects, especially ones that have undergone extensive environmental review, to die in the jet wash of legal wrangling. Clearly something has to change. America’s energy future depends on it.