This week was the worst in recent memory for developers of energy pipelines.
When President Donald Trump became president, the conventional wisdom was that all barriers to the construction of oil, natural gas, and natural gas liquids pipeline would come crumbling down. As soon as he took office almost a year ago, Trump signed executive memoranda allowing two controversial oil pipelines — Keystone XL and Dakota Access — to move forward.
But since those promising early days for pipeline developers in the age of Trump, the victories for the industry have not been as clear-cut.
Over the past week, in particular, federal and state regulators and environmental groups have taken actions that are generating a rare dose of optimism among residents who view many of the nation’s proposed pipelines as unnecessary and environmentally harmful. Regulators and environmentalists are making it harder for pipeline projects to get rubber-stamped in states like New York, North Carolina, and Louisiana.
On Thursday, the Federal Energy Regulatory Commission (FERC) dealt a major blow to the Constitution Pipeline when it rejected the pipeline builder’s petition for a declaratory order. The federal agency’s denial of the company’s petition reaffirmed states’ rights to review the impacts of these projects on their water.
While FERC is the federal body charged with regulating interstate gas pipelines, the Clean Water Act gives individual states the authority to reject projects that would degrade their water quality. New York had exercised that authority when it rejected the pipeline in September 2016. But Constitution Pipeline challenged that decision, saying the DEC failed to act in a reasonable amount of time. Earthjustice, the Sierra Club, and its partners intervened to oppose Constitution’s argument that New York had waived its Clean Water Act authority.
FERC’s decision to support New York surprised observers who thought the commission would use its federal powers to overrule the state’s decision, as it did last September in a separate natural gas pipeline case. But the make-up of the commission has changed. In September, FERC was only a three-member commission, with two hard-line pipeline-supporting Republicans and one Democrat. This time around, FERC had its full complement of commissioners — three Republicans and two Democrats — who ultimately ruled in a unanimous decision that they were wary of undercutting states’ rights and saw no reason to break with the same legal standards used for the last 30 years.
“We are ecstatic that FERC rejected Constitution’s desperate attempt to undermine New York’s authority to safeguard the quality of the state’s waterways,” Earthjustice attorney Moneen Nasmith, who represented intervenors helping to defend DEC’s decision, said in a statement Friday.
The battle over the $1 billion Constitution Pipeline isn’t over yet. Williams Cos., the lead sponsor of the project, plans to ask FERC to reconsider its Thursday ruling, and if necessary, take it to federal appeals court, company spokesman Christopher Stockton told E&E News.
In Virginia, state lawmakers have for the most part given up on stopping the construction of two major natural gas pipelines through their state — the Atlantic Coast Pipeline and the Mountain Valley Pipeline. But they haven’t given up on passing measures that would mitigate the impact of the pipelines on residents and the environment. Three members of the state House of Delegates and one member of the Senate introduced a package of legislation this week aimed at protecting landowners and water resources. For example, the legislation would requiring pipeline developers to post performance bonds to remediate any water quality effects from construction and limit the rights of pipeline surveyors to enter private property.
Both Democrats and Republicans in the state have come out in favor of the pipeline projects. Outgoing Virginia Gov. Terry McAuliffe (D) has been a big booster of both projects. Incoming governor, Ralph Northam (D), has expressed his desire to let the regulatory process determine whether the pipelines get built. The bills are unlikely to gain much traction in the current legislative session, with Republicans maintaining a slim majority in the House of Delegates. But if the tides turn in future elections, the bills could serve as a template for taking measures to protect the health and safety of residents from pipelines and other energy infrastructure projects.
“We don’t feel as though this has been a great process where objective and clear information has been provided about the environmental impacts of these pipelines,” Virginia Del. Sam Rasoul, one of the sponsors of the legislation, told the Richmond Times-Dispatch. “There’s been a lot of political pressure.”
More uncertainty surrounds the future of the Atlantic Coast Pipeline in North Carolina. On Wednesday, the pipeline’s ran into a setback when North Carolina regulators delayed a decision on the project’s clean water certificate until as late as February and postponed several other environmental permits. Dominion Energy, the lead developer of the project, had hoped to break ground last year on the $5.5 billion pipeline, designed to transport natural gas from West Virginia into Virginia and North Carolina.
The Atlantic Coast Pipeline, like Constitution Pipeline, already had received permission from FERC to build but is still waiting for several permits in North Carolina. Environmental justice has become a major issue for the pipeline project in North Carolina. African Americans, Native Americans, and those living in poverty make up a greater percentage of the population than the statewide average in every county the pipeline would traverse, except one. More than a quarter of the state’s Native Americans live along the project’s path.
Environmental groups in Louisiana are not backing down from their own fight against the construction of a new project in Louisiana’s pipeline alley. The groups filed in federal court in Baton Rouge on Thursday to block construction permits awarded by the Army Corps of Engineers to the Bayou Bridge oil pipeline that would allow it to be built through environmentally sensitive areas, including the Atchafalaya Basin along the southern edge of the state.
“By allowing unsustainable development in the Basin, we are endangering hundreds of cities and communities and millions of people in southern Louisiana.” Dean Wilson, executive director of Atchafalaya Basinkeeper, one of the organizations filing the suit, told The Times-Picayune.
The Bayou Bridge oil pipeline is supported by most politicians in Louisiana, but is opposed by residents who live along its path, including Native Americans who have waged a long fight stop the project.
Pennsylvania is another state where both Democrats and Republicans strongly support the natural gas drilling boom and construction of new pipelines. This week’s intensifying pipeline battles elsewhere in the nation followed on the heels of a major decision by Pennsylvania environmental regulators to temporarily suspend construction on Energy Transfer Partners’ proposed Mariner East 2 natural gas liquids pipeline. On January 3, the state ordered Energy Transfer Partners subsidiary Sunoco Pipeline LP to immediately cease construction of the pipeline due to “egregious and willful violations” of safety and environmental laws.
Given the likelihood Pennsylvania will eventually allow Energy Transfer Partners to resume construction, opponents of the Mariner East 2 pipeline are refusing to declare victory. “Now is not the time to sit back and bask in a false sense of relief. It’s a time to push back with everything we have left,” Elise Gerhart, whose family’s property is getting crossed by the pipeline, told ThinkProgress.