Notes from Underground: The Pipeline Pipeline (Part 2)
This series assesses the current state of the pipeline industry, with consideration of future prospects for pipeline development and the potential downsides they represent. Part 1 provided an overview of the role of public opinion in the development of infrastructure projects. Part 2 will look at the courts and whistleblowers as potential backstops to prevent ill-advised pipeline projects. Parts 3 and 4 will look at biogas as a possible next step for the pipeline market and take a close look at the pros and cons of plans to harness methane from hog farms in North Carolina.
The Courts: Effective Accountability Tools… Sometimes, For Now
Several recent court decisions – the latest in a panoply of protracted struggles – suggest the pendulum has once again swung away from growth in the pipeline industry.
The Keystone XL pipeline was blocked in early July by a ruling that put a hold on pipelines that cross waterways. An appeal from owner TC Energy (formerly TransCanada) may find its way to the Supreme Court.
The Dakota Access Pipeline (DAPL) is also in limbo, awaiting a thorough environmental review. While the pipeline had been up and running, the decision to run the pipeline under Lake Oahe led the courts to shut the pipeline down and drain it while a proper review could be carried out. This seemed to bode well for the short term, but the corporation that controls the pipeline, Energy Transfer Partners (ETP), appears determined to force its pipeline to completion. In early August, a stay was granted by the DC Circuit to allow the fuel to continue to flow during the review. A follow-up decision put power in the hands of the administration. ETP remains confident that the pipeline will ultimately be allowed to operate; opponents are equally confident that they can continue the battle until they achieve victory.
The demise of the Atlantic Coast Pipeline (ACP) certainly gives DAPL opponents reason for hope, as backers (Duke Energy and Dominion Energy, based in North Carolina and Virginia, respectively) finally decided that cost overrun would render the pipeline a boondoggle.
But while this success for those who would have been impacted by the ACP should be seen as a victory for public accountability, Duke and Dominion are not planning to give up on building new pipelines that will create a long-term commitment. Natural gas prices have been down (in part due to decreased demand during the COVID-19 pandemic), but production continues unabated, and energy companies are finding new ways to keep pipelines filled with fuel (part 4 of this series takes a closer look at the waste-to-biogas plans for North Carolina’s hog farms).
These recent victories demonstrate that the courts can be effective at delaying or even halting pipeline construction. However, there are at least two problems with relying on the courts alone to hold pipeline companies and government agencies accountable.
First, existing laws are inadequate. Many environmental laws designed to prevent harm are in need of updates, which requires public pressure and political will. Changing standards under, for example, the Clean Water Act, has proven unreasonably controversial. Lawmakers who insist that greater precaution is necessary often fail to counterbalance those who say too much regulation harms the economy – a dubious argument, but often a winning one in the halls of Congress. Potent environmental regulation has been made to appear more controversial to some than environmental harm resulting from casually greenlighting projects for self-interested industries.
Some relevant laws are not designed to prevent harm – only to indicate where harm might occur. This of course has value but is demonstrably inadequate for pipeline regulation based on the regular occurrence of leaks and explosions. Part 1 of this series described NEPA as a strong accountability tool for bringing potential risks to public (and judicial) attention, but it was noted that effectiveness is limited to raising awareness, and rarely rises to a level sufficient to cancel a project.
With a growing understanding of areas ranging from environmental justice to climate change, environmental laws are generally in need of contemporary, science-based reassessment. Under an administration that distrusts science and describes regulations as “job killing,” however, real improvement to laws designed to protect the public from environmental harm remains on the horizon.
But should such laws come to fruition, they will come face to face with the second problem with relying on courts: judges and justices who lag behind the curve of public opinion and scientific reality, who may interpret laws in ways that favor corporations over public well-being. For example, one reason many were surprised at the end of the ACP was that the Supreme Court had recently granted permission for the pipeline to run under the Appalachian Trail – a decision that did not sit well for pipeline opponents, and which raises concerns regarding future pipelines seeking passage through protected areas.
While one could argue that filling vacancies in federal courts over the past three-and-a-half years is a success story, at least as convincing is the view that the job of filling benches has become outrageously politicized. This latter viewpoint argues that many un- or under-qualified individuals now fill seats that could have been filled sooner with more competent jurists.
For now, courts still often – but not always – side with the impacted public on pipeline cases, and they have been the most effective mechanism in slowing the country’s long-term commitment to dirty energy.
Whistleblowers: the Last Bastion
Government Accountability Project specializes in what is arguably the most important line of defense for the public: the protection of whistleblowers who are compelled by conscience to bring important information into the public light.
In the case of pipelines, there are numerous applicable laws to provide not only environmental protection, but also protection for potential whistleblowers – in avoiding retaliation, or in holding the retaliating entity accountable. However, no whistleblower protection is airtight; some laws are not effective, even to the extent of increasing the risk to the whistleblower. Some offer hollow remedies, and many have very low success rates.
Statutes of limitations are often problematic, as unlike the federal Whistleblower Protection Enhancement Act, many laws cut short the amount of time a whistleblower has to report a problem or retaliation.
While some whistleblowers prevail – by exposing wrongdoing, but also by avoiding retaliation or receiving compensation when retaliated against – many do not. For a pipeline whistleblower, like any other, the options must be carefully considered in consultation with an attorney with requisite expertise.
The most obvious option for a pipeline industry worker is the Pipeline Safety Improvement Act (PSIA), but unfortunately the law has rarely been invoked. Among its strengths are broad compensation options and a low burden of proof to show that blowing the whistle was a contributing factor to retaliation. Among its weaknesses are no guarantee of anonymity, no protection against gag orders, and no “kick-out” action to provide access to a jury trial if a timely agency decision is not forthcoming. Government Accountability Project is actively working with the Senate Commerce Committee on a bill to improve protections for pipeline industry whistleblowers.
The greatest threats posed by pipelines are leaks, fires, and explosions. Environmental harm may be reported under applicable environmental laws, such as the Clean Air Act and Clean Water Act. Some of the earliest whistleblower legislation, these statutes are extremely outdated and in need of improvement. However, they allow citizen suits whereby any member of the public may report a threat or harm to the environment.
Other laws may be applicable for particular individuals or under specific conditions, such as corporate whistleblower protection under Sarbanes-Oxley (SOX), or the False Claims Act (FCA) in the case of a misuse of federal funding.
Most states have their own FCAs, and other state laws may also be applicable. Where consultation with a state-barred attorney is appropriate, Government Accountability Project can often refer whistleblowers to attorneys with necessary expertise.
Civil tort claims may be the most effective route for receiving compensation for harm suffered personally, including to private property (“nuisance” suits will be worth keeping in mind as biogas and hog farms are discussed later in this series).
In short, there are many options of varying applicability and efficacy for reporting pipeline problems. Ultimately the goal must be to improve existing laws, both for the protection of the environment and for whistleblowers.
The Main Driver of Policy: Public Good, or Economic Reality?
As has been clear for at least a decade, stopping any pipeline from being built once and for all remains an elusive quest. In the end, the fate of pipelines is a question of public opinion, of policy and politics, and of economics.
After adding legal fees; the cost of safety and impact reviews; and security, cleanup, and potential decommissioning costs to the costs of land, labor, and materials, it is no surprise that companies like Duke and Dominion may choose to halt a project. But building and maintaining pipelines has proven to be expensive not only for their owners, but for the people who live or recreate where pipelines run – not to mention workers who risk harm from unsafe working conditions. At what point, when the risks and costs are too great and the alternatives safer and cheaper, does the industry itself have to change?
The answer may be that the industry adapts but does not evolve. As this series continues, we will see that finding new ways to fill pipelines to justify building them remains a greater priority than assessing the viability of dependence on costly methods of transporting dirty fuel.