Notes from Underground: The Pipeline Pipeline (Part 1)
While recent court decisions have stopped or slowed construction on major pipelines, the industry appears to have no intention of capitulating.
In a collaborative four-part series between Government Accountability Project’s Environment, Energy & Climate Change (EE&CC) program and Food Integrity Campaign (FIC), we will look at the present and future of pipeline production in the United States.
In Parts 1 and 2, EE&CC’s Notes from Underground series will discuss the lines of defense for accountability in pipeline construction and operation. Part 1 looks at ways through which public opinion may impact policy decisions like the approval of pipelines. Part 2 will look at legal protections through the lenses of court decisions and whistleblower protection laws.
In Parts 3 and 4, we will consider one of the emerging potential next steps for pipeline companies: biogas. Converting emissions from hog farms into energy sounds like a win-win proposition, but a deeper look at the implementation of this strategy in North Carolina reveals the risks of investing in long-term projects that do not address underlying unsustainability.
Is the Tide Turning on Pipelines?
The state of affairs for pipeline production in the US is in familiar territory: restlessly fording a landscape of upheaval and uncertainty. There is legitimate reason for hope or worry, whichever side of the pipeline discussion you occupy.
Pipeline companies and supporters can be gratified by an administration that will not only bend over backward but will bend (not to say “break”) the law to encourage continued investment in energy sources that pollute and lose value over time. Also, of course, there are deep industry pockets, along with government assistance, to assure that pipelines, like other fossil fuel interests, always have the funds to support a long fight.
However, recent court decisions suggest that there is such a thing as a bridge too far. (Part 2 of this series will include discussion of those decisions.)
For those who wish to slow or stop pipeline construction, the court rulings have offered plenty to celebrate, as have trends in renewable energy and public opinion. But money and politics are always a dangerous combination, and always pose a risk to transparency and public accountability.
Government Accountability Project naturally supports the side of accountability, and that creates sympathy with those who oppose new pipeline construction. The reasoning is simple: pipeline companies, through their actions, have not shown a strong penchant for transparency.
From the use of private security and brute force against protesters (at Standing Rock and elsewhere), to the dubious use of eminent domain to obtain land for pipeline construction, to the inaccurate and inadequate environmental reviews that have been their undoing in court, pipeline companies and their allies frequently place profits above public wellbeing.
But the US system of policymaking, broken as it often appears, provides numerous blockades – or at least guarded turnstiles – to stop or slow ill-advised projects. The recent court successes have illustrated the effectiveness of the system when it works, but the judiciary is only one piece of the puzzle – and a piece which is itself threatened by partisanship.
Public Lines of Defense
Government Accountability Project defends and advocates for whistleblowers, who often act as the final safeguard to protect from harm or injustice. But there is a gamut of accountability to traverse before a whistleblower becomes a necessary impediment to potentially harmful action or brings attention to harm that has been covered up. Here, we will provide an overview of the spectrum of public influence on pipeline approval. In Part 2 of this series, we will discuss the courts and available whistleblower laws – the final backstops of accountability.
The various mechanisms in place for determining whether or not a significant piece of infrastructure (like a pipeline) can or should be built are intended to defend the public against projects that are dangerous, unnecessary, or simply unwanted. The process thus ostensibly provides for fair public input and unbiased decision making.
An imprecise sequence of checks and balances starts and ends with public opinion. Any choice made by government needs to be supported by at least a sliver of the population, even if merely a “special interest” (which can mean almost anything of which one group approves and another group does not). When the public identifies a need, government or private industry will attempt to satisfy that need, be it environmental protection or a shiny new pipeline.
Public opinion is broadly, if not always accurately, expressed through the electoral process. A basic premise of a democratic republic like the United States is that the public votes for the representation it wants, and chosen representatives make decisions on the public’s behalf. Analyzing the US electoral process is well beyond the scope of this piece, but it is not hard to see difficulties posed both by disenfranchisement of voters and by the influence of money on political decision making. In any event, it ultimately falls on the public to elect good leaders and reject poor ones – as subjective as that assessment may be.
Once those leaders are in place, their job is to pass laws and institute rules and regulations for the public’s benefit. It is also their job to empower executive agencies to carry out important accountability measures when approving projects that impact the public. Through the advent of the administrative state, we have been afforded new tools for democratic rulemaking. The regulatory process invites public comment and participation. But this important and necessary idea also creates a significant obstacle to accountability.
When lawmakers review public comments, industry has a tremendous leg up. Unlike private citizens who might be impacted by a gas pipeline running under their homes, corporations have ample time and resources to provide detailed input for pending legislation, regulation, or project approval. Invariably, industry provides voluminous material to influence decisions through which it may benefit or suffer.
The average person must rely on their elected representatives, who may be influenced more by industry lobbyists than by individual constituents. Individuals may organize, or support organizations that will advocate for their position, like NGOs or community groups. But the general public begins at a disadvantage in terms of time and resources to devote to defending their interests.
NEPA: Toothless, yet (Still) Potent
The regulatory process has given the public some tools that cut both ways, The National Environmental Protection Act (NEPA) being the most relevant to this discussion. NEPA stands – for now – as one of the most significant pieces of accountability legislation. The irony is, NEPA has very little power to prevent ill-advised projects. The few exceptions, where NEPA has real teeth (like in application of the Endangered Species Act), are regularly under attack. Ultimately, NEPA only obliges an agency to give a good, hard think about the possible repercussions of any undertaking.
But NEPA is still potent enough to raise the ire of the current administration, and to regularly provoke animosity from industry with claims that it slows progress – which is of course the intent. NEPA is in fact a very conservative idea, declaring that consequences should be thoroughly considered before barreling ahead with major projects. The obligation really is only to consider those consequences, not to address them. NEPA can be industry’s greatest friend, in that a mere consideration of any downside can be enough for approval.
Conversely, NEPA’s strength is that a close look often brings potential risks into the public’s line of vision. This is the part to which industry objects, and is the reason that, on June 15, the Trump administration announced planned changes to NEPA that would severely limit the input of communities and curtail the requirement that agencies consider environmental impacts before approving a project. The intended changes will speed along the approval of major projects, from highways to pipelines, limiting public input (and accountability) in the process.
The suggested changes are so extreme that many view them as altering the law beyond recognition, and are already facing legal challenges on various grounds. The likelihood of changes to NEPA during this administration is small, but should Donald Trump be reelected along with any power in Congress to support his agenda, the expected hollowing of NEPA may strike a major blow to accountability.
The Power of Protest
One timely piece is missing from this discussion of public influence on policy: protest, the power of which can be seen in the protests against police brutality that have taken place throughout the US since the death of George Floyd at the hands of police in Minneapolis in May.
This power was on full display at Standing Rock in North Dakota in 2016, when objection to the Dakota Access Pipeline coalesced into massive demonstrations. Even while the fate of that pipeline remains unclear, Standing Rock underscores that protest can be an effective (if unpredictable) tool.
Among the goals of protest are changing public opinion, demonstrating support for a point of view, standing against actions and policies that have underacknowledged negative impacts, and affecting policy change. Pipeline protests have, by those measures, had considerable success. But until sustainable policies are enacted and enjoy the support of a vast majority, other tools are needed. The courts will be a focus of the next part of this series, along with an overview of whistleblower and other laws with pipeline applicability.