Enough legal games — we need to unleash American energy

Environmental activists have taken their campaigns into the U.S. legal system and political arenas to stall energy infrastructure buildout. Just last week, New Hampshire’s Liberty Utility abandoned plans for a $340 million natural gas pipeline following public and political pressure. 

A spokeswoman for environmental group 350 New Hampshire said of the development that being able to “prevent new infrastructure from being built is a win in itself.” 

These efforts have become obvious in the last two months, as Americans witnessed billions of dollars’ worth of pipeline projects aimed at supplying U.S. energy markets being abandoned, delayed or ordered to temporarily shut down.

Using the power of the courts, environmental advocacy groups like Sierra Club and the National Resource Defense Council have managed to stymie a number of important energy projects in the name of environmental protection and climate change.

Projects including the Keystone XL, Dakota Access and Atlantic Coast Pipeline have all, in one way or another, become a cause célèbre for activists. However, manipulating the permitting process and leveraging the courts to effectively raise capital costs and create lethal project uncertainty is a “win no matter the cost” approach that could have serious impacts on our nation’s energy security and environmental goals.

While the crux of the Keystone XL pipeline case dealt with tensions over interagency consultation, environmental groups sued the lead agency, the U.S. Army Corps of Engineers in Montana federal court to prevent the use of an important permitting program for the project. The ruling stripped the Corps of its ability to grant permits for any construction project under the Nationwide Permit 12 program — a huge overreach. In fact, Judge Brian Morris’s ruling would have halted as many as 70 oil and gas pipeline projects. 

Critics of the ruling suggested it would increase administrative and permitting costs, lead to lengthier application and approval processes, and spur needless litigation — all bad outcomes for American energy. 

In the end, the Supreme Court did reinstate the Nationwide Permit (NWP) 12, which cleared the way for several pipeline projects to proceed under a fast-track permitting process, but excluded the permitting for the Keystone XL Pipeline. The Army Corps is now formulating a proposal to “ensure that the activities authorized by [Nationwide Permit] 12 will result in no more than minimal individual and cumulative adverse environmental effects.” Sen. John Cornyn (R-Texas) introduced legislation to reform the Nationwide Permit 12 program and clarify its role to approve pipelines. 

Litigation by environmental groups seemingly had little to do with a better process and everything to do with legal jujitsu. They no doubt saw the interagency tensions as an opportunity in their longstanding strategy to stop fossil fuels from being extracted, transported and even used at all. 

As we emerge from COVID-19, we will need all the infrastructure we can get to take advantage of abundant energy supplies and kick-start the national economy. The alternative? With demand for oil and natural gas not weakening any time soon, efforts to thwart domestic production and block key transportation infrastructure will not diminish our use of these fuels but, instead, will simply increase dependence on foreign sources like oil from the Middle East and gas from Russia. 

Additionally, blocking pipeline construction could actually undermine climate goals by denying fuels like natural gas the ability to continue to drive emissions reductions. After all, natural gas was a big driver behind the 28 percent reduction in carbon emissions between 2005 and 2017 for power generation. The fuel is also essential to renewables like wind and solar, which need the flexible and reliable backup of fossil fuels to ensure their survival. Not to mention that methods to transport fuel outside of pipelines will only add to our greenhouse gas emissions footprint. 

It’s a dangerous precedent being set for our nation’s energy infrastructure. 

Nevertheless, increasing and repeated instances of lengthy courtroom feuds highlight the need for real policy debate within state and federal legislatures. Otherwise, projects will remain in litigious feedback loops with rulings spurring more, not less, litigation. Legislators need to solve this, not kick it to the courts. 

To emerge from COVID-19, we’ll need the strong, long-term value of American oil and gas. The world still needs energy amid this crisis and has seen a worldwide 4 percent increase in natural gas-fired power generation. With American production and exports both at record levels, now is the time to build American energy, not use the court to hamstring it.

Steve Bucci served for three decades as an Army Special Forces officer and was a military assistant to former Defense Secretary Donald Rumsfeld. He is a visiting research fellow at The Heritage Foundation.