Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Standing Rock Sioux Tribe has been protesting the Dakota
Speaker 1: Access Pipeline and litigating against it for years, saying the
Speaker 1: project threatens their water supply and religious rights. But since
Speaker 1: the beginning of his administration, President Trump has pledged to
Speaker 1: get rid of the red tape he calls federal regulations
Speaker 1: backing major oil pipeline projects. We've begun the most far
Speaker 1: reaching regulatory reform in American history. We've approved longstalled projects
Speaker 1: like the Keystone Xcel and the Dakota Access pipelines. But
Speaker 1: those pipelines are stalled once again, and another major pipeline
Speaker 1: project is over This week, environmentalists are celebrating a trifecta
Speaker 1: of victories blocking major oil pipelines, as a court ordered
Speaker 1: the Dakota Access pipeline to shut down pending environmental review.
Speaker 1: The Supreme Court refused to reinstate streamline permitting for the
Speaker 1: Keystone Excel pipeline, and developers of the Atlantic Coast Pipeline
Speaker 1: just called it quits. Joining me is Pat Parento, a
Speaker 1: professor of environmental law at the Vermont Law School. Pat
Speaker 1: this is the first time that a judge has ordered
Speaker 1: a major oil and gas pipeline to shut down. I
Speaker 1: think it was surprising that Judge Boisberg, who is known
Speaker 1: as a judge who's sympathetic to environmental issues, but who
Speaker 1: you know, is not a sure thing when it comes
Speaker 1: to rulings. He is issued ten different opinions in this
Speaker 1: Dakota Access pipeline case, most of them when in favor
Speaker 1: either of the government or the pipeline company, and so
Speaker 1: it was a big surprise that he took into account
Speaker 1: the disruptive effect of stopping the oil flowing through the
Speaker 1: pipeline while an environmental impact statement is done, which will take,
Speaker 1: by the Corps estimate thirteen months or more. But he said, oh,
Speaker 1: I really don't think I have a choice. I warned
Speaker 1: the CORE that they were proceeding in haste and not
Speaker 1: taking into account the threats to the water supply of
Speaker 1: the Standing Rock Tribe and others where the pipeline was
Speaker 1: going to go under the Missouri River and under Lake Oahi,
Speaker 1: and that's the source of drainy water for the tribe
Speaker 1: and it's very close to the reservation. So even though
Speaker 1: he had told the CORE exactly what they needed to
Speaker 1: do to fix the problems with their analysis. They didn't
Speaker 1: do it. Maybe because they're under the orders of the
Speaker 1: President to get this thing done and approved and over with.
Speaker 1: We don't know. But the point is the Jedge said,
Speaker 1: you didn't really leave me any option other than to
Speaker 1: just allow you to continue to thumb your nose at
Speaker 1: the law, other than to shut you down. So that's
Speaker 1: what I've done. So now. At the same time, the
Speaker 1: Supreme Court has agreed to reinstate a fast track water
Speaker 1: permitting program for pipelines across the country except for the
Speaker 1: Keystone x L Yes, that's right. The Center for Biological
Speaker 1: Diversity and some tribes and some other environmental groups had
Speaker 1: sued challenging the construction of Keystone under this nationwide permit
Speaker 1: Number twelve. Judge Morris and Montana concluded that the nationwide
Speaker 1: permit that the Core of Engineers uses to authorize pipeline
Speaker 1: construction was illegal, and it was illegal because the Corps
Speaker 1: didn't consult with the Fish and Wildlife Service under the
Speaker 1: Endangered Species Act. Because, of course, all of these pipelines
Speaker 1: across the country, there are thousands of miles of them.
Speaker 1: They do from time to time encounter endangered species habitat.
Speaker 1: And so Judge Morris said, your permits illegal. But he
Speaker 1: went further and said, because the nationwide permit itself is illegal,
Speaker 1: all of the construction that's relying on it should stop.
Speaker 1: And that's what the Supreme Court said. No, we're not
Speaker 1: going to enjoin all pipeline construction across the country, but
Speaker 1: the injunction against Keystone will stand for now and for
Speaker 1: the trifecta here. And we talked about this case when
Speaker 1: it came before the Supreme Court. The Atlantic Coast Pipeline
Speaker 1: had just one a Supreme Court victory, but it's developers
Speaker 1: are pulling the plug on it. Yes, I mean, they're
Speaker 1: the cost of the pipeline or skyrocketing. The original estimate
Speaker 1: was something like five billion, it's now eight billion. There
Speaker 1: are still three other injunctions against the Atlantic Coast Pipeline
Speaker 1: pending in the Fourth Circuit Court of Appeals. So yeah,
Speaker 1: so the developer finally just threw in the towel and
Speaker 1: said we just can't absorb um these escalating costs. And
Speaker 1: of course, at the same time, there's a glut of
Speaker 1: gas on the market and with the unknown consequences of
Speaker 1: the coronavirus pandemic in its economic fallout, it's not clear
Speaker 1: when you know that market demand is going to rebound.
Speaker 1: So the backers of this project, of financiers of this
Speaker 1: projects are concluding it's just too big a risk and
Speaker 1: it just isn't as profitable as that once looked. And
Speaker 1: it's a real interesting point here that you mentioned the trifecta,
Speaker 1: with these three huge decisions affecting major pipelines coming within
Speaker 1: days almost of each other, and all of them related
Speaker 1: to legal problems that frankly are a result of the
Speaker 1: Trump administration's determination to ram rod these projects through the law,
Speaker 1: and the federal courts are stopping them left and right.
Speaker 1: Market forces are contributing to it, but the legal vulnerabilities
Speaker 1: of these projects is a big reason why they're collapsing.
Speaker 1: Is it because the environmentalists who have been bringing these
Speaker 1: actions have been smart about where to bring them, have
Speaker 1: used a specific strategy, or is it just that the
Speaker 1: Trump administration hasn't been following the law. It's both. I mean, clearly,
Speaker 1: the courts are finding in case after case that the
Speaker 1: administration is not following the law. And again, these laws,
Speaker 1: like the National Environmental Policy Act have been on the
Speaker 1: books for fifty years. Um. So it's not anything new
Speaker 1: that the courts are coming up with. They're simply saying,
Speaker 1: the law is really clear here, and you're simply not
Speaker 1: following it. Um. And in part because you're getting a
Speaker 1: direction from the White House to accelerate these energy projects. Um,
Speaker 1: damn the torpedoes and damn the law kind of process.
Speaker 1: And that's really the major reason. The environmental groups have
Speaker 1: been smart in picking their targets and making their arguments.
Speaker 1: But frankly, I think the Trump administration is losing these
Speaker 1: cases more than the environmentalists are winning them. There was
Speaker 1: always this idea, not in law, but this idea that
Speaker 1: courts would never shut down pipelines that were in service.
Speaker 1: Now that we have this decision, well, it's fuel litigation
Speaker 1: against existing pipelines, I don't think so. I think the
Speaker 1: environmentalists here have been smart and strategic in going after,
Speaker 1: for the most part, these major projects. I mean, Keystone
Speaker 1: again is importing some of the dirtiest fuel on the
Speaker 1: planet from the baking crude oil sources in Canada. UM.
Speaker 1: And so the targets so far I think have been
Speaker 1: chosen because they do represent a major investment in fossil
Speaker 1: fuel infrastructure. That's of course driving the climate crisis more
Speaker 1: so than just suing on every single pipeline everywhere. I mean,
Speaker 1: there are you know, a lot of pipelines in service
Speaker 1: that are not being sued against. The n Bridge line
Speaker 1: number three is another big one coming down out of
Speaker 1: Canada and through the Upper Midwest, and that's very much
Speaker 1: in litigation. But I'm not seeing that, you know, environmental
Speaker 1: groups or local groups are suing and every single pipeline
Speaker 1: in the country that's that doesn't seem to be happening.
Speaker 1: What is it with the Army Corps of Engineers? Have
Speaker 1: they always been so? It seems slipshod in the way
Speaker 1: they perform these environmental reviews. No. In fact, the Corp
Speaker 1: of Engineers has a pretty good track record defending their
Speaker 1: permit decisions before the Trump administration. Not to say they
Speaker 1: have haven't lost they they they do occasionally lose these cases,
Speaker 1: but nothing like what we're seeing now. Um And I
Speaker 1: don't think the professional staff of the Corps of Engineers
Speaker 1: is the problem. I think it's the political appointees above them.
Speaker 1: Remember that the Corp of Engineers as part of the
Speaker 1: Department of Defense and the Department of the Army. And
Speaker 1: so by the time you get way down into the
Speaker 1: rank and file career people in the Corps of Engineers,
Speaker 1: they're being erected what to do. It is very much
Speaker 1: a hierarchical military style organization the core of engineers. So
Speaker 1: when they get directions from above, even if they don't
Speaker 1: like them, they'll follow them. Um and in these cases,
Speaker 1: they're following them right into an injunction with the Dakota
Speaker 1: Access pipeline. I recall, I'm sure most listeners recall that
Speaker 1: there were protests that went on for months at the site,
Speaker 1: you know, supporting the American Indian tribes and even support
Speaker 1: from celebrities. And this is also being looked at as
Speaker 1: not just environmental justice win, but a social justice win. Yes,
Speaker 1: that's true. Yes, I mean, you know, you're talking about
Speaker 1: you know, Indian reservations, the Sioux tribes in the Dakotas,
Speaker 1: with some of the highest unemployment rates in the country,
Speaker 1: the worst public health services in the country, they're suffering
Speaker 1: disproportionately from the coronavirus pandemic as well as many other
Speaker 1: environmental impacts. And um, you know, so there's we're watching
Speaker 1: the result of the Black Lives Matter movement, but it's
Speaker 1: now beginning to incorporate the rights of Indigenous people and
Speaker 1: the and the problems that they're suffering. So the Dakota
Speaker 1: Access Pipeline has more to do with the direct impacts
Speaker 1: on their water supply and the and the judgment you know,
Speaker 1: basically said your analysis of what would happen if there
Speaker 1: was a spill from this pipeline, and of course pipelines
Speaker 1: do spill frequently, um your ability to detect that spill,
Speaker 1: to correct it, to stop it, to protect that water supply.
Speaker 1: It's your analysis just as two weak, and it's been
Speaker 1: criticized by a number of experts once you put it
Speaker 1: out for public comment, and yet you didn't on to
Speaker 1: the criticisms You've got. All of that is systematic with
Speaker 1: regard to the way facilities are cited in minority communities,
Speaker 1: including tribal uh communities, and their their rights, both their
Speaker 1: sovereign rights. In some of cases these reservations have the
Speaker 1: rights of a sovereign are not being respected, they're not
Speaker 1: being consulted in the way they should be, and so forth.
Speaker 1: So Dakota Access Pipeline has all kinds of elements it's
Speaker 1: got climate change, it's got environmental justice, it's got legal
Speaker 1: compliance with the National Environmental Policy Act issues, It's got
Speaker 1: a whole mix of things going on. Are there any
Speaker 1: other pipeline projects around the country that have social justice
Speaker 1: issues that you can name or or you're just talking
Speaker 1: in general? I think Enbridge Line number three is it's
Speaker 1: called that up in Minnesota is being opposed by um
Speaker 1: tribal interests because it's crossing reservation lands, it's affecting some
Speaker 1: of their wetlands and streams that they are part of
Speaker 1: their their natural resource base for some of these communities,
Speaker 1: fisheries and so forth. So that that's one that certainly
Speaker 1: combines a number of these environmental justice issues. The the
Speaker 1: Atlantic Coast Pipeline did as well, because they were going
Speaker 1: to put a compressor station for the pipeline in a
Speaker 1: black community in Virginia. And now that that pipeline has
Speaker 1: been scrapped, of course that compressor station won't be built.
Speaker 1: But that was another element of the fight over the
Speaker 1: Atlantic Coast Pipeline. Thanks for being on the Bloomberg Law Show. Pat,
Speaker 1: as always, that's Pat Parento, a professor at the Vermont
Speaker 1: Law School, and that's it for this edition of Bloomberg Law.
Speaker 1: Remember you can always get the latest legal news are
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Speaker 1: June Grosso. Thanks for listening, and remember to tune to
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