Trump’s Pipeline Crusade

Date: 05/30/2019

While the Executive Branch Positions Itself to Approve Energy Projects Without Exception, States Use the Law to Fight Back


The Goliath was slain. Or so we thought. In 2015, President Barack Obama seemingly took a hardline position against the controversial Keystone XL pipeline, vetoing a bill passed by Congress that would approve its construction. He said that approval of the pipeline would reduce the United States’ influence on other countries to commit to green policies. Environmentally mindful members of the country let out a sigh of relief.

Then on Nov. 8, 2016, Donald Trump was elected president of the United States. In the first days of his presidency, Trump happily approved not only Keystone XL but also the now-completed Dakota Access pipeline. His executive mandate spat in the face of the courageous individuals—many from Indigenous communities—who had worked hard to protect lands and communities from the needless environmental destruction embodied by Keystone XL.

Are there really no downsides, Mr. President?

Throughout his presidency, Trump has continued to be a proponent of the fossil fuel industry, and, more specifically, oil pipelines. Even though individuals from around the country and all walks of life have spoken out against the construction of such environmental pariahs as the Dakota Access and Keystone pipelines, Trump and his supporters continue to advocate for more unnecessary fossil fuel infrastructure to benefit private oil companies.

Executive Negligence

Earlier this year, the president threatened to issue executive orders to promote the development of oil and gas pipelines by limiting the power of the states to block construction. He issued two such orders on Apr. 10 of this year. Citing national security, Trump claimed that additional pipelines would consolidate the United State’s international “economic growth and power” and security from “the Russians.”

The inclusion of Russia in the president’s reasoning seems to be more than coincidental, considering that the Mueller Report was on the brink of release and Trump’s former attorney Michael Cohen had just testified before Congress. Even at the very beginning of his administration, Trump’s first Secretary of State, Rex Tillerson, was awarded the Russian Order of Friendship for negotiating a deal between Russia and his company ExxonMobil.

Trump’s first Order can be best summarized as an appeasement for oil companies. It signals the administration’s prioritization of free market economics and a commitment to dismantle the power of the Environmental Protection Agency by limiting its ability to review policies relating to Section 401 of the Clean Water Act, a law that creates a division of powers between the state and federal level to regulate construction projects that affect bodies of water.

This order does not change the existing law. The law in question still requires oil companies to get approval from state governments before beginning construction on new infrastructure. Pipelines may have been given the green light by Trump, but if fossil fuel companies try to use this to bypass state governments, they may be met with hostility in the form of lawsuits.

In the second Executive Order, there is much more to worry about. This directive is yet another attempt by Trump to supersede the authority of Congress by taking executive control over several regulatory areas involving the approval, denial, or amending of infrastructure projects that cross borders—powers that should not be under the sole discretion of a single person, even the president. The areas included under the order are the “construction, connection, operation, or maintenance of”:

  • 1. Pipelines
  • 2. Facilities that import or export water or sewage
  • 3. Facilities that transport “persons or things, or both”
  • 4. Bridges
  • 5. Below- or above-ground versions of the aforementioned
  • 6. Border crossings for land transportation (motor and rail)

When Obama used executive authority to deny Keystone XL, his veto was a response to massive public outcry and in recognition of the current climate crisis. Trump, on the other hand, is attempting to subvert a system of checks and balances in defiance of the will of the people to approve a pipeline that is arguably no longer financially or legally viable.

If left uncontested, the second executive order could be the potential means that the president uses to cram through his border wall, deportation policies, and swift approval of pipelines and other fossil fuel projects. By implementing sole executive authority over the creation of buildings and systems along the border, Trump is effectively setting himself up to create any “practical” border policies he sees fit—the word “practical” here emphasizing that these structures could possibly reduce legislative oversight.

Thankfully, the Indigenous Environmental Network filed a lawsuit last month to prevent the president from issuing a new permit for the Keystone XL pipeline, arguing that Congress, not the president, has the ability to issue these types of permits. The lawsuit argues that the presidency should not consolidate any more unnecessary power, especially when this order would both exacerbate the primary impacts of climate change and reduce our ability to deal with subsequent impacts. The most recent round of scientific reports—including one from Trump’s own administration—declare that we only have 11 years left to curb our greenhouse gas emissions before we are wedded to climate catastrophe. This reality is no longer something we can ignore.

Checks and Balances?

The executive branch’s powers are vast but not limitless. Fortunately, a separation of powers exists in the United States Constitution, preventing all the powers of the government from being concentrated in one office. Congress and the courts have the real power in the pipeline debate because their respective responsibilities and obligations have the potential to limit the actions of the president. The courts have the power to strike down any action the president takes if it violates the Constitution or existing laws.

In 2017, New York state’s environmental regulatory body (Department of Environmental Conservation or NYSDEC) found that an oil pipeline company—Constitution Pipeline—had not sufficiently met environmental standards in accordance with the Clean Water Act to ensure the protection of the local ecosystems. The company sued, but the federal court upheld New York’s decision. Attempting to appeal to the Supreme Court, Constitution Pipeline was denied.

Earlier this year, Bloomberg reported that NYSDEC also blocked a permit requested by William Partners LP to build a pipeline on the East Coast that would pump natural gas from the Marcellus shale formation. Extending from New York to West Virginia, the Marcellus formation is one of the most abundant fields of natural gas in the world, with estimates pointing to as much as 84 trillion cubic feet of gas within the region. The William Partners’ pipeline was approved by the Federal Energy Regulatory Commission, but given the axe by New York state, which cited concerns over water quality in congruence with standards outlined in the Clean Water Act.

Thankfully, certain officials at the federal level can also curtail the president’s crusade for pipelines. Federal Circuit Judge Brian Morris issued a ruling in February preventing further construction of the Keystone XL pipeline, stating that the pipeline’s builders failed to adequately address the issues noted in environmental findings from the Obama Administration. In fact, the ruling stated that the Trump Administration blatantly ignored factual findings in order to push through the construction of the pipeline without seriously weighing—or even understanding—the consequences of its construction. Despite this wave of environmentally-driven resistance from both the courts and the public, Trump continues to attempt to revive the so-called “zombie pipeline,” even if that means stepping on states’ rights to do it.

No Such Thing as a Safe Pipeline

Although pipelines are considered a “safer” form of transportation for petroleum products, they are still not “safe” by any rational standard.

The massive reserves of oil and gas in the Marcellus Shale have been the source of both profit for oil and gas companies and chagrin for the citizens who live near pipelines. Due to the high amount of extraction in this region, companies have pushed pipeline infrastructure to its limit. For example, many pipelines are now being altered to flow in different directions in order to relieve pressure on the system in a process known as flow reversal. Most pipelines being utilized for flow reversals are old and fail to conform to today's safety standards, making catastrophe more and more likely.

The pipeline infrastructure that currently webs across the United States is rapidly aging and proving to be more dangerous than the industry lets on. Leaks and explosions are still all too common, and they hurt ecosystems, the climate, and human lives.

For example, the San Bruno pipeline explosion in 2010 caused millions in property damage, wounded dozens, and killed eight people. Gas, oil, and energy companies, like Pacific Gas and Electric (PG&E) have failed to adequately ensure that their infrastructure is safe enough for their customers. Because PG&E has a monopoly on energy distribution in Northern California, the company should be even more conscientious about its infrastructure and the dangers it poses to people living above gas lines.

Moving forward, we cannot continue to invest in infrastructure that proves both dangerous and unsustainable—especially when renewable infrastructure is available, cheaper, and much less risky. The Trump administration’s fossil fuel fixation is leaving America behind in the race to a green future.

States of Resistance

President Trump’s actions reveal his administration’s lack of interest in holding fossil fuel companies to high safety standards through regulation. In fact, the current administration appears to want exactly the opposite. From the recent executive orders, to cabinet member selection, to allowing monopolies to run rampant, the current administration is doing everything in its power to remove barriers that ensure the financial and physical safety of the people of this nation.

Fortunately, as previously noted, the Trump administration is not unchallenged. After being continually pushed around by the federal government, Indigenous communities and environmental activists alike are working through the states and utilizing the separation of powers between the levels of government to do what they must to protect our common home.

Even if President Trump wants to do away with the rights granted to the states with the Clean Water Act, he can’t. The Executive Branch has little power in this matter, for the time being. Unless Congress or the Supreme Court decide to abdicate or misuse their power, pipelines can be delayed indefinitely—but states must continue to demand high standards for pipeline construction.

In an ironic turn of events, states’ rights—something long championed by libertarians and the conservative right concerned with federal powers over issues like gun laws, abortion, and discrimination—is now finding new interest from environmental activists and the progressive left as they fight to preserve a healthy environment for themselves and future generations.

In the state of Nebraska, for example, a court case headed to its Supreme Court will reexamine the legitimacy of the permit given to the Keystone XL pipeline from state officials. This fight can be won on the state level. Trump’s issuance of a new permit does not make the pipeline untouchable.

It is beyond clear that this president has gone out of his way to protect dated methods of producing energy. Instead of utilizing time and money to kickstart the Green New Deal, or a similar initiative, to reinvigorate the U.S. economy and make it environmentally friendly, the president has doubled down on methods that will only worsen the existential crisis that is climate change. Others have been fighting and will continue to fight. Will you?