The Trump Administration has thrown many government agencies and long standing patterns and practices into utter chaos, and we live now in a time of great uncertainty. I think this fact itself is uncontroversial, and can be acknowledged whether you support or dislike the current President.
On the environment, we know the Administration thinks environmental regulation is holding the country back, and that it inhibits corporate growth. As a result, we see the leader of the EPA blatantly trying to destroy his own agency from within, and dismantle decades of environmental law and regulation. Some of you may cheer this, others recoil in horror, but the end result is chaos and uncertainty. There is no perfect counter this, but at the same time there has been no “clean kill” of environmental laws either. It’s a snarling cloud of a knife fight, where everybody loses.
There is a heavy push to accelerate fossil fuel exploitation from “fast” to “ludicrous speed”, including a head-shaking attempt to revive the coal industry of all things. Attempts to revive coal have many industry experts shaking their head, and is putting question marks on many plans (like around natural gas, which has been perceived as a slam-dunk for some time now).
Other departments like the State Department is facing even bigger issues, such as 40% of slots laying unfilled within the agency.
And then there’s Health Care – no, I won’t go there, but let’s just put in a mention as another destabilizing effect.
So as I said, there is a lot of uncertainty, confusion, and not a little panic in many areas.
At the same time, many of these Administration policy goals are being clumsily stated, and even more clumsily executed. FERC is a prime example. While the Trump Administration has pushed infrastructure and fossil fuel industries as keys to job growth and America’s overall success, his administration’s own incompetence ended up taking FERC from a pipeline-approving machine to being an utterly impotent agency with no quorum and no ability to advance fossil fuel interests like natural gas pipelines. The result was six months of no FERC quorum, six months of projects piling up a mile high within the FERC offices.
Again, this should not be controversial to anyone, pro- or anti- Trump.
Months later, the quorum has been restored, but even that was done in a ham-handed way. Seats were filled, but the to-be Chairman wasn’t one of them (he’s still in the queue), and the current Chair has been put into a holding pattern. As a result of this confusion, FERC’s first open meeting on September 20th contained no major items, only cursory decisions of little import. The commissioners barely went through the motions before adjourning, accomplishing bupkis for the past month.
And while this has been going on, States have not been sitting still, and neither have the courts. Even FERC has managed to get some punches in of their own. Here are some of the key decisions and actions that have happened in the past several months around natural gas pipelines and environmental law.
Important Energy and Environmental Actions in the Past Few Months
FERC found to have inadequate analysis of Green House Gas emissions resulting from pipeline build out
In the U.S. Court of Appeals for Washington, DC recently found FERC’s Final Environmental Impact Statement (FEIS) for the Southeast Market Pipelines Project to be inadequate, stating “We agree that FERC’s environmental impact statement did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry…We thus grant Sierra Club’s petition for review and remand for preparation of a conforming environmental impact statement.”
Click to access 16-1329-1689670.pdf
NY DEC denies Clean Water Act permit for pipeline, FERC overrules it saying decision came too late
In this case, a pipeline company got a FERC Certificate, applied for a 401 CWA permit to NY State DEC, and then the DEC issued several notices that the application was incomplete. Ultimately, NYDEC denied the 401 permit, but it did so several months beyond the CWA 1-year deadline. There was disagreement here on when the 1 year “clock” begins, complicated by the incomplete application. The lesson here, at least to me, is that states should simply deny incomplete applications, rather than risking exceeding the CWA regulatory clock and losing their power entirely.
NYDEC Denial of Constitution Pipeline CWA Permit Upheld by Second Circuit Court
On the flip side, the Second Circuit upheld NYDEC’s denial of the Constitution Pipeline’s CWA permit (which was done in under a year).
NJDEP Denies PennEast Pipeline CWA permit due to incomplete application
Our own DEP in NJ has followed NYDEC’s example, and denied the PennEast pipeline it’s CWA application on the grounds that the application was exceptionally incomplete. If PennEast receives a Certificate of Public Convenience and Necessity from FERC, it is widely expected that PennEast will then reapply for its CWA 401 and 404 permits once it gets eminent domain and survey access to properties that have denied them so far to date (which includes the vast majority of properties in NJ, something in excess of 65%).
West Virginia revokes CWA 401 permit in wake of Hurricanes Harvey and Irma
In a surprise move, in early September, 2017, West Virginia changed their mind and withdrew their CWA certificate fo rthe Moutain Valley Pipeline. The withdrawal was done in a very terse two sentence letter from the West Virginia DEP “This is to advise you that the West Virginia [DEP]…hereby vacates and remands the Section 401 Water Quality Certification issued on March 23, 2017, relating to the Mountain Valley Pipeline to construct a natural gas pipeline in West Virginia”. No reason was given for vacating the decision, though many suspect Hurricanes Harvey and Irma’s unprecedented size and damage may have played a role in the decision.
Trump Wants to Reverse Clean Water Rule
Not directly on point, but strongly related, Trump has issued executive orders about weakening Environmental protections, and the head of the EPA is now examining getting rid of regulations such as the Clean Water Rule. This is not quite the same as the CWA 401 and 404 sections, but it shows the danger environmental regulations are in in the Trump era.
Republicans pass bill to streamline Natural Gas Pipeline Permitting and Change cross-border permitting
In July, the Republican-lead congress voted 248-179 to pass a bill giving FERC more authority over natural gas pipelines. In a nutshell, this bill allows FERC to put its own arbitrary deadlines on other agencies for pipeline-related permits. If those agencies are late, the permit is issued automatically. This is a transparent attempt by the fossil fuel industry to make it cheaper and easier to get pipeline permits, and to give them much more certainty that their applications will succeed, while ignoring legitimate concerns of climate and other impacts.
Delaware River Basin Commission considering permanent Fracking Ban in Delaware Watershed.
For many years, there has been a de-facto fracking ban around the Delaware. Not explicit, there simply has been no rule enforced by the DRBC, but the net result is that without a rule about fracking, fracking has not been allowed. That could be codified into DRBC regulations soon though, as the DRBC is now officially considering to draft regulations to ban fracking in our water shed. While not directly impacting pipelines like PennEast, it sends a clear message that fracking is harmful to water resources, and adds impetus to anti-fracking causes. This matters to PennEast, because PennEast is being sourced entirely from fracked gas from wells in PA.
The gist of all this is to point out that we’re in a roiled, chaotic mish-mash of a political climate, and that this is a time of great confusion and also great change. We need people to be aware of it, and guard against “the other side” sneaking stuff in, while at the same time “our side” should be alert for opportunities for US to make unexpected pushes and get wins that the other side never anticipated. This is a time when “norms” no longer exist, and you can’t rely on old patterns of behavior to guide you through treacherous waters. This is both good and bad.
When looking at complex and controversial projects like Penn East, we can no longer take the same-old, same-old approach to resistance. “The States” and agencies like the NJ DEP have power today, but that power could vanish with remarkable speed if we are not careful.
We can’t assume the Clean Water Act will save us in perpetuity, because the EPA and the CWA are under attack and may cease to exist at some time in the near future. At the same time, FERC is not omnipotent, and has weak points, as recent court decisions against it have demonstrated. FERC can be beaten, and the rules can be changed. The NJDEP was seen for years as pro-pipeline, pro-industry. But in 2016-2017 there seems to have been a sea-change in the agency, culminating with the NJDEP rejection of PennEast’s CWA application. And that swing may continue assuming NJ elects a Democratic Governor in November.
Related to that election, the DRBC’s composition would also change if a Democrat wins the NJ Governorship, and they are already moving to be more aggressive against the fossil fuel industry.
I know when Trump was elected President, many environmentalists despaired, and the fossil fuel industry cheered. But things are not always as they seem, and there is no certainty on either side anymore. The Trump Administration has sent mixed-signals to many industries, and totally botched up the government on many levels, with a result that the Federal Government is now tripping over its feet more often than not. So despite his pro-fossil fuel ideas, we have not seen the total dismantling of regulation that everyone feared. At least not yet.
At the same time, we see States and other agencies waking and reacting against the new Administration. We see more state DEP and related agencies standing up and wading in where they fear the Feds are stepping away. But they are using fundamental powers, such as the CWA, which are in jeopardy.
Then there are Congresscritters trying to hamstring environmental agencies, by allowing FERC to force them to arbitrary and short permit deadlines.
This is a time of great danger, and of great hope. In volatile times, you can lose your shirt for sure, but there are also once-in-a-lifetime opportunities lurking in the most unlikely of places. For those who despaired at Trump’s Election, take hope. Out of this chaos there are still many chances for us to defeat the PennEast Pipeline.
And remember, in troubled times help sometimes comes from the most unlikely of places. Keep the faith people, and keep that hope alive and well.