How Environmental Litigation Has Turned Pipelines Into Pipe Dreams
| Date | 01 July 2022 |
| Author | Madison Hinkle, Jesse Richardson |
52 ELR 10558 ENVIRONMENTAL LAW REPORTER 72022
by Madison Hinkle and Jesse Richardson
SUMMARY
Proposed oil and gas pipelines have faced a myriad of legal challenges in the pas t several years. Even where
pipeline proponents have prevailed, the cost and delay of protracted litigation has of ten caused cancella-
tion of pipeline projects. In addition, presidential transitions have led to abrupt reversals of pipeline policies,
which courts have often reviewed skeptically. This Article explores the regulator y framework for pipeline
construction and analyzes recent lawsuits, describing the legal requirements that agencies must follow to
change policies and discussing policies of the Obama and Trump Administrations in context of the legal chal-
lenges. It concludes by analyzing the approaches taken by pipeline opponents and discussing implications for
future projects.
HOW ENVIRONMENTAL LITIGATION
HAS TURNED PIPELINES
INTO PIPE DREAMS
Madison Hinkle is a graduate of West Virginia University (WVU) College of Law and a Community
Advocate for the Mountain Watershed Association. Jesse Richardson is a Professor of Law and Lead
Land Use Attorney at the Land Use and Sustainable Development Law Clinic at WVU College of Law.
Energy has always been a hot topic in the United
States, but energy development continues to become
more contentious as society progresses. One hun-
dred years ago, the United States cared only about produc-
ing and importing enough energy to satisfy the demands
of the American people. In the 1960s, however, Americans
became more concerned with the impacts that human
activities were having on the planet.1 While early environ-
mentalists were primarily concerned with pollution of the
air, waters, and lands of the United States, the movement
continued to expand to encompass more issues, including
that of climate change.2
Environmentalists began partnering with social just ice
groups and indigenous rights movements to ght pipeline s
in the 2000s. Pipelines ca n have a number of environmen-
tal impacts, both direct and indirect. Direct environmen-
1. Karin Otsuka, e Evolution of Environmental Movements: Responding to Im-
pending reats, U. W. S. M E’ A. (Apr. 11, 2019),
https://smea.uw.edu/currents/the-evolution-of-environmental-movements-
responding-to-impending-threats/.
2. Id.
tal impacts associated with pipelines include underground
leaks, ruptures, and explosion s, polluting the surrounding
lands and leaching into waterw ays.3 Indirect environmental
impacts associated with pipelines stem from the burning
of the oil and gas that the pipelines transport, causing an
increase in harmf ul pollutants such as carbon dioxide and
methane that exacerbate t he impacts of climate change.4
Many of these pipelines are permitted to be constructed
in areas aecting minority populations, including Native
American tribes, Black communities, and poor rural com-
munities.5 Environmental organizations have begun part-
nering with these communities to ght the development
of pipeline infrastructure, and have been taking action
in the U.S. courts system. Bec ause most pipelines require
approval from some type of federal agency— such as the
U.S. Fish and Wildlife Service (F WS), the U.S. Army
Corps of Engineers (the Corps), and the Federal Energy
Regulatory Commission (FERC)—many groups chal-
3. Andrew Krosofsky, Here’s How Pipelines Directly Aect the Environment,
Wildlife, and Human Beings, G M (Feb. 8, 2021), https://www.
greenmatters.com/p/why-are-pipelines-bad.
4. How Pipelines Fuel Climate Injustice, C R P (Oct. 1,
2019, 8:00 AM), https://www.climaterealityproject.org/blog/how-pipe
lines-fuel-climate-injustice.
5. See generally Elizabeth Jones & Queen Shabazz, Mountain Valley Pipeline
Follows Familiar Playbook: Push Pollution Into Poor and Minority Communi-
ties, V. M (July 2, 2021, 12:01 AM), https://www.virginiamercury.
com/2021/07/02/mountain-valley-pipeline-follows-familiar-playbook-
push-pollution-into-poor-and-minority-communities/.
Authors’ Note: The authors acknowledge the support of
the West Virginia University (WVU) College of Law and
the Arthur B. Hodges College of Law Fund, as well as
the support of the WVU Center for Innovation in Gas Re-
search and Utilization.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
72022 ENVIRONMENTAL LAW REPORTER 52 ELR 10559
lenging pipeline construction and operation have chosen
to pursue claims under the Administrative Procedure Act
(APA), challenging agency actions and decisions.6
is Article explores how the modern administrative
state regulates pipeline construction, analyzing a variet y of
lawsuits led on the East Coast during the 21st century
to determine ways in which environmental organizations
have been successful or unsuccessful in ha lting pipeline
development. Part I outlines requirements that administra-
tive agencies must meet when making or cha nging deci-
sions, as well as how the executive branch and presidential
policy inuence agencies. Part II discusses the energy poli-
cies of Barack Obama and Donald Trump during their
terms in oce, providing background for the pipeline case s
led during that time fra me. Part III provides a compre-
hensive discussion of lawsuits led concerning ve major
pipeline projects, and Part IV analy zes how environmental
organizations found success w ithin those lawsuits, summa-
rizes the potential mecha nisms for opposing harmfu l pipe-
line construction, and discusses thoughts for the future.
Finally, Part V concludes.
I. The Administrative State and
Executive Branch Policy
Executive responsibilities and administrative law principles
collide when agency action essential ly ips following a
presidential election, particularly when the outgoing and
incoming presidents belong to opposing political parties.
To gain a rm grasp on the current chaotic state of inter-
state pipelines, we must acknowledge the level of inuence
that the modern administ rative state has over pipeline poli-
cies and regulations. Section A of this part briey recaps
how administrative agencies’ actions a re reviewed in court.
Sections B and C then outline the ways in which t he poli-
cies of administrative agencies a nd presidents came to be
aligned, and what happens when those policies a re reversed.
A. Agency Requirements Under the APA
e powers of most administrative agencies are outlined
in the statutes that create them, their enabling statutes.7
If agencies do not adhere to these organic statutes and the
APA, parties may challenge the agency action in court,
potentially invalidating a n agency conclusion or rule. For-
mal rulemak ings and adjudications are reviewed under
the “substa ntial ev idence” sta ndard.8 A decision is said to
be supported by substantial evidence when a reasonable
mind would nd the decision to be sucient to support
the conclu sion.9
While the APA fails to outline a standard of review for
informal rulemakings and adjudication, the U.S. Supreme
6. See infra Part IV.
7. Justia, Legislative Agencies, https://www.justia.com/administrative-law/
legislative-agencies/ (last reviewed May 2022).
8. Ruth Maurice, Legal Standards of Proof, N, https://www.nolo.com/legal-
encyclopedia/legal-standards-proof.html (last visited May 6, 2022).
9. Id.
Court held that in the absence of an express standard of
review, agency actions should be reviewed under an “arbi-
trary and capricious” standard.10 Under this standard,
reviewing courts are required to determine whether the
agency action was the result of a clear error of judgment.11
is review is also known as the “hard look ” doctrine.12
When courts underta ke their review of an agency action
under the arbitrary and capricious sta ndard, courts have
held that a select few factors may support a nding that
an action was arbitrar y and capricious.13 First, whether an
agency relied on factors that the U.S. Congress did not
intend for the agency to consider; second, whether the
agency failed to consider an important aspect of the prob-
lem at issue; third, whether the agency oers a n explanation
for its action that conicted with the avai lable evidence;
or fourth, whether the agency oers an explanation for its
action that is so implausible it could not be attributed to a
dierence in view or the product of agency expertise.14
B. Presidential Directives and
Administrative Agencies
While agency rulemakings have always reected presi-
dential priorities, President Ronald Reagan initiated the
ultimate agency oversight mechanism between the White
House and federal agencies.15 By Executive Order, Presi-
dent Reagan created an ex haustive regulatory process
through which agencies were required to submit all ru le-
makings a nd actions to the Oce of Management and
Budget (OMB), an oce within the Executive Oce of
the President (EOP).16 is process requires agenc y experts
to submit a comprehensive cost-benet analysis of the
proposed rulemaking, and OMB makes suggestions for
changes before any publication of agency action.17 W hile
most regulatory statutes formally dictate that the head of
an agency is to make nal regulatory decisions, every presi-
dent in the past four decades has required predecisional
review to be conducted by the OMB.18
With each presidential administration after President
Reagan, the relationship bet ween administrative agencies
and the EOP has only intensied, covering many more
aspects of agency functions. Today, most agency actions
consist of an organized endeavor of eectu ating presiden-
10. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 1 ELR
20110 (1971).
11. Id. at 416.
12. Patrick M. Garry, Judicial Review and the “Hard Look” Doctrine, 7 N. L.J.
151, 152-53 (2006).
13. George v. Bay Area Rapid Transit, 577 F.3d 1005, 1010 (9th Cir. 2009).
14. Id.
15. While President Reagan is most known for his deregulatory agency, it is
important to note that his successful deregulation of government was ac-
complished by more bureaucratic regulations and requirements.
16. Elena Kagan, Presidential Administration, 114 H. L. R. 2245, 2247
(2001).
17. Id. at 2277-78.
18. Robert V. Percival, Who’s in Charge? Does the President Have Directive Au-
thority Over Agency Regulatory Decisions?, 79 F L. R. 2487, 2487
(2011).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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