Protestors and lawyers

Sept. 5, 2017
When Enterprise Transfer Partners sued environmental groups last month, temptation was strong to see the move as a turn of the proverbial table.

When Enterprise Transfer Partners sued environmental groups last month, temptation was strong to see the move as a turn of the proverbial table. In most high-profile environmental cases, energy companies are defendants, not plaintiffs. But more than role reversal is involved here. ETP went to court to redress environmental activism gone amok. Environmental groups go to court for the same reason their emissaries chain themselves to bulldozers: to effect extreme outcomes unachievable through democratic processes.

ETP's lawsuit targets groups whose protests delayed completion of the Dakota Access crude oil pipeline between North Dakota and Illinois. It alleges the groups spread false information about the project and supported criminal and terrorist acts.

Protests indefensible

Legally and intellectually, the protests were indefensible. ETP possessed the permits it needed to complete the contested segment and had, according to court documents, changed its plans in many ways to accommodate cultural sensitivities of resistant Native Americans, the Standing Rock Sioux. Environmental activists created a spectacle anyway: camping at Lake Oahe, ND; making unfounded claims about threats to water quality; exploiting sympathy for Native Americans; and leaving behind a mess. The administration of former President Barack Obama acted unjustly when it pandered to extremism and blocked the pipeline. President Donald Trump was correct to reverse the mistake.

Water quality and Native American culture clearly are secondary concerns for extremists. They mainly want to block pipelines because doing so impedes development of oil and gas resources. Obama's earlier capitulation on the Keystone XL pipeline border crossing taught them the tactic can work with a compliant administration reckless with law. Trump fixed that mistake, too.

Activism has a legitimate role in democratic politics. But it should have some purpose other than obstructionism. Few of the activists in the Dakota Access protest could offer a coherent reason for their objection to the pipeline other than that they personally didn't want it to be built. That's not good enough. The news media treated them, at least for a while, as heroes. They were, in fact, hooligans. If ETP succeeds with its lawsuit, it will underscore this point, which could be useful to future energy politics if the media pay attention.

The litigation will not, however, make energy policy. Nor should it. Energy policy should be made by legislative and regulatory entities, not courts. The public, which includes people who produce, process, and transport energy as well as people who buy energy, must be able to participate in energy decisions. That they cannot do so when judges and juries make energy policy explains extremists' preference for litigation.

Anything can happen in court. Consequences can be profound. For reasons altogether legalistic and not at all scientific, for example, the US Supreme Court in 2007 gave the Environmental Protection Agency conditional authority to regulate greenhouse gases as pollutants under the Clean Air Act. Under Obama, the EPA used that legality to claim control over the energy economy-another dangerous fiat Trump is reversing.

Environmental groups know that if they file enough lawsuits, they'll win one now and then. They did so last month when the US Appeals Court for the District of Columbia vacated Federal Energy Regulatory Commission approval of three gas pipelines in the US Southeast. The Sierra Club used a shopworn tactic, challenging adequacy of impact analysis required by the National Environmental Policy Act. The court agreed with the plaintiff's argument that the study should have accounted for indirect effects of greenhouse-gas emissions beyond the project itself. That makes NEPA analysis increasingly speculative and exploitable by activist counsel. If the argument survives appeal, NEPA will gain leverage as the antidevelopment tool it has become.

License to stymie

Do Americans really want protestors and lawyers to have license to stymie projects that would improve their access to affordable energy?

When presidents charmed by activism and judges muddled in legalities make energy decisions, people affected by those decisions lose political voice. That's a problem. It's a big problem.