Coming into office, President Donald Trump pledged to reinvest in America’s infrastructure and began his presidency by approving two controversial pipeline projects: Keystone XL and the Dakota Access Pipeline. Since these, his administration has worked to continue the push in the face of numerous challenges from environmentalists and local governments. A series of rulings last week, though, showed that deference to federal agencies often helps pipeline projects, ironically even as the Federal Energy Regulatory Commission (FERC) continues to work to simplify the permitting process.
Last week, several cases challenging natural gas pipeline permits were settled in favor of pipeline companies, with courts stressing that regulatory agencies were the appropriate bodies to determine pipeline permitting questions.
The first case dealt with the Algonquin Incremental Market (AIM) Project, which would replace and expand sections of a natural gas pipeline in New England which passed close to both the city of Boston and a nuclear power plant. The FERC issued an order allowing the company to construct and operate the pipeline in and dismissed requests by environmental groups to rehear arguments on the pipeline, a decision which was challenged in court. Last week, the D.C. Circuit Court of Appeals upheld this decision.
The ruling was significant in its deference to the opinion of federal agencies. When making its ruling, the Court of Appeals weighed between conclusions offered by the Nuclear Regulatory Commission and Entergy, one of the pipeline’s owners, and witnesses presented by pipeline opponents, deciding that the commission was within its rights to rule against the independent experts.
“Here, the Commission was faced with Entergy and NRC’s analyses, on one hand, and critiques from two independent experts, on the other. It permissibly decided to credit the NRC’s expert conclusions, and to accept that NRC’s extensive formal responses had adequately addressed the opposing experts’ concerns,” the court decided. “The expert conclusion adopted by the Commission, moreover, was that of another federal agency. Agencies can be expected to respect [the] views of such other agencies as to those problems for which those other agencies are more directly responsible and more competent.” (Internal quotation marks removed.)
The cases show that courts continue to exercise deference to administrative agencies when settling cases. In a second case filed by a group of nuns, the Adorers of the Blood of Christ, against a pipeline in Pennsylvania, the Fourth Circuit Court of Appeals ruled in favor of the pipeline company and FERC. In its decision, a three judge panel unanimously sided with the regulatory body, finding that the courts were not an appropriate venue to decide the pipeline permitting question.
“The statutory review scheme provides for eventual review of this issue before a court of appeals,” the court wrote. “Therefore, Plaintiffs must work through the statutory review scheme first.”
Both decisions rested on similar grounds, finding that FERC had primary responsibility for weighing the need for pipeline construction and the environmental impacts of proposed lines. They also affirmed that premature court challenges are not a valid means of halting construction when FERC has granted approval.
This deference seems limited to the commission, however. A third case, decided by the Fourth Circuit Court of Appeals, on Friday, found that the Bureau of Land Management and the U.S. Forest Service failed to properly comply with the National Environmental Policy Act and the National Forest Management Act. In its decision, the court criticized both agencies for deferring to FERC’s study of a project’s environmental impact, which accepted the pipeline’s mitigation plans.
“As explained above, FERC, as lead agency for natural gas pipeline projects, issued the EIS. Nonetheless, the Forest Service and the BLM may adopt FERC’s EIS, but only if the EIS ‘meets the standards for an adequate statement’ under pertinent regulations, and only if the agencies undertake an independent review of the statement and determine that their comments and suggestions have been satisfied,” the court wrote, adding that, in this case, comments and suggestions from the Forest Service were not satisfied by FERC.
The decisions show that, despite efforts to streamline the permitting process, the Trump administration has had an uncertain record of success. Although a significant amount of agency deference to FERC remains, there are still limits to how far courts will let other federal agencies defer to FERC decisions in support of pipeline construction. The court decisions show that, if the administration wishes to continue to expedite the pipeline approval process, it must adopt reforms across many federal agencies, not just FERC.
