Delay-and-Block for Pipelines… and Solar?

Last December the Fourth Circuit Court of Appeals in Richmond found that the 2,200-mile Appalachian Trail is part of the National Park System, which blocks federal agencies from authorizing a pipeline crossing. Depending upon U.S. Supreme Court action, the ruling in the Cowpasture River Preservation Association v. U.S. Forest Service case could well doom the Atlantic Coast Pipeline, which crosses the trail in order to connect Midwest shale gas with Southeastern markets.

Noah Sachs, an environmental law professor at the University of Richmond, asks a provocative question: “Did the Fourth Circuit really turn the Appalachian Trail into a ‘Great Wall’ that blocks all energy transport from the Midwest to the East Coast, as many energy industry analysts have suggested?”

In an essay in The American Prospect, Sachs argues that Cowpasture doesn’t preclude all crossings of the Appalachian Trail, so the “great wall” analogy may not be apt. But here’s a passage that I found profoundly disturbing:

The real significance of the Cowpasture case is that it uses the Appalachian Trail crossing as a legal hook to delay and block the pipeline and raise its costs. There’s nothing wrong with delay-and-block tactics. It’s a strategy that environmentalists have been using since the 1960s. And as the climate crisis heats up, it’s a virtuous one.

Indeed, over the years, environmentalists have perfected the strategem of filing lawsuits to delay and block, and in so doing, they have devised the means to block — or at least render significantly more costly — almost any infrastructure project anywhere. I invite Noah, who is a friend of mine, to contemplate the possibility that those tools may be turned against environmentalist goals.

A group called Citizens for Responsible Solar appears to be adopting delay-and-block tactics to oppose development of Cricket Solar LLC’s proposed 80-megawatt facility along Algonquin Trail in southern Culpeper County. According to the Free Lance-Star, the group has asked the Planning Commission and Board of Supervisors of Culpeper County to pause deliberations on the proposal “until a further details review of this application for Culpeper County can be adequately and completely evaluated.”

The citizens group advocates limiting solar farms to industrially zoned land. In neighboring Spotsylvania County, the group notes, a county land-use official has discussed mitigating the impact of a proposed 500-megawatt, 6,500-acre solar farm in the county by setting conditions on soil testing, traffic and parking, and emergency response plan, an invasive-species plan, site-specific safety plans, and a decommissioning plan.

It’s a tried-and-true tactic: Throw everything you can think of against the wall and see what sticks. Drag out the proceedings, run up the legal costs, run up the time-of-money costs, and run up the development and construction costs, until the project no longer makes economic sense.

Consider the political economy of solar energy in Virginia. Where do developers put 6,500-acre solar farms? In rural areas, where cheap, open land is available. What is the political tint of Virginia’s rural counties? They are red flyover country. They are Donald Trump country. Inhabitants resent urban elites, especially environmentalists; they don’t give a hoot about global warming; and they don’t like the idea of outsiders despoiling their countryside to solve a problem that, to their minds, doesn’t need solving.

Grassroots resistance to solar farms has sprouted across rural Virginia. Some has been effective, some not. The resistance hasn’t been well organized, although there are signs that might change. Citizens for Responsible Solar have been spreading its well-articulated vision of “responsible solar development” to other groups fighting solar farms.

What should keep Noah and like-minded brethren awake at night is the prospect that more savvy groups like Citizens for Responsible Solar will use environmentalist delay-and-block tactics to stall large-scale solar development in Virginia. Now, one could argue that they won’t be successful because, unlike the grassroots opposing new pipelines, the grassroots groups opposing solar farms don’t get financial and legal support from the foundations and not-profits  funded by liberal millionaires and billionaires. But what if they did get outside financial support? What, then, could they accomplish?

Another test case will be the deployment of wind power off the Virginia coast. There’s a lot more money in Virginia Beach than in Culpeper County, and there are vested interests like the beach-front hotels that might not warm to the idea of wind turbines on the horizon. What if moneyed interests adopt environmentalist scorched-earth legal tactics to wind farms?

Don’t be surprised if the delay-and-block strategem, like Frankenstein’s monster, one day turns against its creators.

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25 responses to “Delay-and-Block for Pipelines… and Solar?

  1. Might want to slow your roll just a bit, especially with respect to entities like Dominion. We utilized a ramped up version of the delay and block strategy in which we threw up all manner of roadblocks (including a miraculous Hail Mary or two) and dragged the Haymarket Powerline proceedings for more than three years. Did we intentionally “run up the legal costs, run up the time-of-money costs, and run up the development and construction costs” you’re damn right we did and we played as dirty as Dominion did. The end result, we got what we wanted and what Dominion should have offered in the first place. The most effective offense is to know the rules and to “use” (or manipulate) the rules. These struggles are generally close in and brutal knife fights so I for one would be unwilling to give up any potential strategy,tactic or advantage simply to preclude opposition to what may or may not be an economically or otherwise viable “green” power solution.

    Unlike Peter, I can hardly be considered a greenie or eco-terrorist but if Dominion for example is going to be allowed to engage in equivalent tactics, why would you wish to restrict its opponents. Seems like it always comes back to the on again off again sponsorship of this site.

    • I’m not sure how you construed this post as an endorsement of Dominion’s tactics, of which I know nothing, in the Haymarket powerline dispute. I was warning that scorched-earth legal tactics can be turned against the environmentalist goal of building more solar and wind.

      • All I am saying is that given the tactics used by entities such as Dominion, I’m not willing to give up (or ask anyone else to give up) the use of scorched-earth tactics for fear that it may theoretically be turned against the environmentalist’s goals at some unknown point in the future. Rather, I would suggest they read the rule book and adopt a similar strategy, adapting as we did to the ever changing rules and circumstances.

  2. I don’t have time to fully address this issue, so I’ll make just a few points.

    The DC Circuit read the existing federal law which says that it is the National Park Service’s responsibility to approve crossings of the Appalachian Trail, not the Forest Service. That is why they voided the approval. Dominion tried a short-cut and is now paying the price.

    The ACP’s claim that this creates a 2,000 mile “Great Wall” is untrue. Currently, there are 55 pipelines that cross the AT at 34 locations. These pipelines crossed on state or private land or before the AT was designated a National Park.

    Those options were always available to the ACP. Atlantic selected a route for the 600-mile pipeline through sensitive terrain that crossed national forests and a national park. Unfortunately, the pipeline route was identified by just two people working for a week, who never left the office. Site selection for the multi-billion utility projects that I worked on required teams of people working for months, including numerous examinations of the actual terrain.

    The successful legal challenge to the way endangered species were handled on Forest Service land resulted from short-cuts that occurred when a new federal administration took over and failed to follow existing rules when they issued permits for the ACP. Instead of following the rules, energy companies are trying to get federal agencies to reduce enforcement of the existing federal laws. Another legal challenge appears on the way.

    The challenge to ACP’s FERC permit, that will be heard by the DC Circuit in October, is based on evidence that the federal agency did not follow the requirements of the Natural Gas Act, the National Environmental Policy Act (signed by Nixon), and their own guidelines regarding how new pipeline projects should be reviewed and approved.

    Having been on the utility side of this for a number of years, I understand that it is sometimes it is a challenge to meet all of the legal and regulatory requirements. We found that state and federal regulators were flexible when presented with better options.

    I have been greatly disappointed with the conduct of both the federal and state regulators, and the energy companies that own the two new pipeline projects in Virginia. There has been blatant disregard for existing laws and regulations by all parties.

    We live in an age where money buys influence by special interests across the political spectrum.

    My advice for avoiding legal entanglements is to avoid taking short-cuts. Do the job right in the first place and follow the law. Instead, Dominion has cut corners, got caught, and is now blaming the problem on others. This is not suitable behavior for a leading energy company.

    • Tom, how would you address Noah’s comment: “The Cowpasture case … uses the Appalachian Trail crossing as a legal hook to delay and block the pipeline and raise its costs. There’s nothing wrong with delay-and-block tactics. It’s a strategy that environmentalists have been using since the 1960s. And as the climate crisis heats up, it’s a virtuous one.”

  3. “What if moneyed interests adopt environmentalist scorched-earth legal tactics” …

    You could say that ‘Delay and Block’ has done Dominion and Duke a favor if the pipeline does not get built after all. It seems to be headed toward the stranded asset category as GHG emitting natural gas looses to renewables with investors.

    Sachs also says ….
    “Yet an even more fundamental problem posed by this latest generation of pipeline projects is not the exact point where they cross the Appalachian Trail, but whether they should be built at all. Once these investments in fossil fuel infrastructure are made, developers have every incentive to use the pipelines for their whole useful life (about 80 years), which would throw greenhouse gases into the atmosphere and exacerbate the climate crisis.” …. Or turn them into stranded assets.

    Another article in Prospect by a lawyer at Temple University has a different way of explaining the regulatory arguments. “The right devised cost-benefit analysis to discredit regulation. Now this technique is showing massive net benefits, and the foes of environmental regulation are in a panic.”

    The Prospect article goes on to describe the history of the regulatory fight. “Cost-benefit analysis was quickly adopted by industry lawyers and lobbyists bridling in response to the wave of environmental health and safety legislation that swept through Congress in the 1970s. They banked on the assumption that imposing a rigid system of cost-benefit analysis would weaken regulatory safeguards, because the benefits of public-health protections—preventing disease, saving lives, preserving ecosystems—would be hard to quantify and so inevitably undercounted in relation to the more easily quantifiable compliance costs to polluters, manufacturers of unsafe products, and so on. But what made cost-benefit so attractive politically was its pedigree in neoliberal economic theory. That lent an air of academic legitimacy to the project and was a perfect fit with the right’s larger political strategy of selling the American public on laissez-faire economics.”

    “The cracks in the foundation began to appear in the 1990s and early 2000s, when air pollution monitoring stations installed throughout the country in the wake of the Clean Air Act began to bear fruit…. Using these studies, the EPA soon began to produce enormous dollar figures for the benefits of most air pollution regulations. Benefits estimates for such rules are now almost always in the billions or tens of billions of dollars and typically swamp costs estimates by at least 2 to 1, but often even 10 to 1 or higher.”

    My old favorite was the “Full Cost Accounting for the Life-Cycle Cost of Coal” by Epstein and CO. The analysis said the offloaded costs of coal electricity would add between 9 and 27 cents to the cost of generating each KW/hr with coal.

    The Prospect author goes on to describe the anti-regulation arguments that have surfaced which she calls an “apparent willingness to abandon even the appearance of intellectual legitimacy,” and a “brazen campaign of bald self-interest by industry to avoid accountability.”

    Finally, according to Sachs, “the argument against the Appalachian Trail as a ‘great wall’ is nicely challenged by the SELC. … “a land parcel analysis on every one of the 55 pipelines (at 34 crossing points). It shows that in each case, the pipelines crossed under the Appalachian Trail on state or private land, or the pipelines existed before the National Park Service acquired the land.”

    “According to Gerken, the Cowpasture decision doesn’t preclude all pipeline crossings of the Appalachian Trail—in fact, he suggested alternate ACP crossing points on state or private land…. At a time when scientists say the United States needs to cut greenhouse gas emissions in half by 2030, approving fossil fuel pipelines like the ACP commits us to the opposite course.”

    Couldn’t agree more. I just don’t see the objections to the ACP as a ‘scorched earth’ policy of Block and Delay, but one of ascribing full costs where they belong and of corporate responsibility to the community, not just the shareholders. There was a time that that was true.

    • Call the tactics whatever you want, Jane. Just hope that the grassroots anti-solar groups don’t figure out how to wield them as effectively as the anti-pipeline forces did.

      • Not to put words in your mouth but it would appear that your position is that block and delay tactics are acceptable if utilized by the anti-pipeline forces but not acceptable if utilized by anti-solar groups. If I have accurately portrayed your position, such situational ethics qualify you for public office.

        • No, I’m really not saying that. I’m saying that the obstructionist tactics developed by environmentalists might come back and bite them in the ass.

          • And the option is to forgo tactics that have proven to work so as to avoid the potential for other groups to use those tactics in a manner adverse to their other interests. Sorry, the tactics are already a known and proven commodity. Further utilization is not any more likely to increase their adverse use than forgoing them and pretending those tactics don’t exist. If the concern is that delay and block will be utilized to block solar projects, then the solution would be determining tactics that undermine those delay and block strategies. Who better to develop such a solution than those that have actively engaged in those tactics and would presumably understand the weaknesses or vulnerabilities.

            Simply sticking one’s head in the sand and hoping that those with opposing interests don’t use tactics you have successfully employed is not a viable strategy.

          • Jane Twitmyer

            And I, and the Temploe law Professor, are saying that obstruction techniques invented by corporations to avoid having to comply with environmental laws that were passed in the 70’s and accepted by both parties then, have come back and bitten the corporations. Cost-benefit analysis was only a muddy excuse until valid measurements were available to the environmentalists and health professionals.

          • Cost-benefit assessments are a good thing. They were a good thing when corporations started utilizing them, and they’re a good thing now — yes, even when environmentalists use them. ACP and MVP absolutely need to be justified on a cost-benefit basis, and if they flunk the cost-benefit test, they should not be built. Of course, cost-benefit analysis is very tricky. The results depend entirely upon what you decide to include and what you leave out.

      • It could be that turning solar into just another central station source of generation is not such a good idea. From an overall grid perspective, putting in solar facilities on hundreds of acres connected at the transmission level misses out on the many benefits of distributed generation, which solar is perfectly adapted to. Maybe the local opposition will cause a reconsideration of our proposals, including all of the costs and benefits of the various options.

  4. The case is an attempt to block approval of the pipeline, I believe.

    There are many, including me, who believe that the pipeline is unnecessary in order to have all of the gas we need and will cause great economic harm to families and businesses in the state, as well as great disruption to the environment. I also believe that it will cause Dominion economic harm in the long run. Obviously, their executives have a different point of view.

    The court challenges are to show that the agencies didn’t properly do their job when issuing permits for the project.

    Ever since the environmental legislation passed in the late 60s and early 70s, organizations have used the provisions in the Clean Air Act, the Clean Water Act, NEPA, etc. to challenge projects they opposed. This has often delayed projects and added to the expense. But it did provide for an additional review of whether the approval of those projects met legal requirements.

    I spent a good deal of time in regulatory hearings, giving testimony, being cross-examined, and being yelled at by “environmentalists”. While not always pleasant, or efficient, it did provide a public “hearing” of all points of view.

    While I didn’t agree with everything or enjoy every aspect, it nearly always had a good outcome. A reasonably fair balance was achieved.

    A lot of what we are seeing in response to the ACP is that, to many, a “hearing” was not accomplished, nor was a “fair” balance achieved. That is why the courts are being used as a last resort.

    The process for approving these pipelines was unlike any that I experienced at either the state or federal level. There is no evidentiary process. If the applicants didn’t want to answer a question or provide information – they didn’t. There was no administrative remedy. Witnesses could not be cross-examined under oath, so statements like “a 2000-mile barrier” to energy projects were accepted as fact without proof or subject to cross.

    While every regulator has a point of view, their role is to be an objective arbiter between a company’s interest and that of the public and the environment they share.

    It takes longer and costs more money to conduct a thorough regulatory review, but it usually results in better outcomes that are less exposed to legal challenge.

    I have been amazed and aghast at what I have seen with the regulator’s behavior regarding these pipelines. Both FERC and the Virginia DEQ have been open advocates for the company’s position. They have overlooked their legal requirements in attempting to promote the development of the project.

    The Forest Service ultimately behaved in the same way and the courts are calling them on it. But not every court challenge works, even if the law seems to favor the challenge. Judges have points of view too.

    We are a litigious society and quick to file suit.

    Today we rush to argument and an exchange of blame. Not too much well-reasoned give-and-take is going on these days.

    Today our energy companies are attempting to reduce the requirements and reviews in order to build more projects faster and make more money. In opposition to a move to one extreme, groups are using the courts to push in the other direction.

    We could reduce some of this if we more fully considered the costs and effects of our proposals and not just how much money they will make. It would also help if we asked for an even-handed regulatory process to properly balance the issues the first time through.

    Our legal system is designed with the principle of doing no harm. As a result, it is arduous, slow, and often misses the mark. It reflects what our culture is at the moment.

    • That’s all fine, Tom, but your vision for Virginia’s energy future requires a much bigger investment in solar. It will be difficult to reach the needed scale if obstructionist tactics price solar farms out of the market. I know you think there’s great potential for solar retrofitting in urban areas, but (a) lacking economies of scale available to solar farms, it’s more expensive, and (b) you’re naive if you think that similar obstructionist tactics won’t be employed in urban areas where NIMBYism is the worst. Maybe solar NIMBYism won’t evolve past the scattered, underfunded grassroots stage. But if fossil fuel interests (or ideologically motivated groups) put serious money into them, watch out.

      • Twenty five percent of the ‘needed scale’ for solar can come from rooftop solar as defined by NREL.

        The structure of the grid is changing everywhere. Virginias is going to have to find a way to accommodate increased distributed generation – a la the major corporations who are challenging their ability to serve their demands differently than Dominion allows.

        There is a paper put out by a company called GridLab who analyzed Dominion’s plan with the good and the bad late last year. Regarding onsite &/or cloud based third party ownership they say … “Distributed energy resources (DER, such as rooftop solar and storage) are already cost effective in many instances and create jobs. Some of the same investments designed to increase DER capacity and asset utilization also improve grid reliability and resilience.” The paper criticizes the proposed gird improvements for Virginia saying they will result in higher electric rates with little reliability and resilience improvements.

        The paper also says that “Alternative providers may be able to deliver services more cheaply than a utility or to help avoid a utility investment (such as a substation or circuit capacity upgrade.)” Utilities “oppose these actions as threats to their monopoly and shareholder interests, even in cases where economically beneficial to customers.”

        As the system changes across the country, Virginia needs to see a plan that will meet customer’s choice as costs fall. Virginia will need appropriate technology investments, not yet in Dominion’s plans, that can prepare the grid for high levels of DER and EVs. While they look more expensive today, they are a big part of the future.

      • Jim, My vision doesn’t “require” a much bigger investment in solar. In my view, we have all the generating capacity that we need right now to serve us for decades, if we begin to use energy more wisely. This will boost our economy, create jobs, and reduce our costs.

        I see that renewables will displace old-style generation because renewable sources will be cheaper, cleaner, and offer customers more choices.

        Our society is terribly fractured now. Strong opinions abound, with little tolerance for other points of view. People who oppose large-scale solar developments will use whatever tools serve their purpose, including many of the tools used by those concerned about environmental issues.

        But it will be more difficult to oppose thousands of small solar facilities deployed on existing businesses and residences that fully comply with local zoning and other ordinances. Telling a landowner what they can and cannot do on their own land is more difficult than opposing the seizure and destruction of property for the private benefit of a few companies.

        Dominion is a fossil-fuel interest, and an ideologically motivated one that is already pouring money into PR and political campaigns to obstruct these efforts and gain support for their own projects. It is just part of the landscape that must be dealt with in trying to get something new accomplished.

        Fortunately, we all have the freedom to access legal and communication tools to support whatever ideology that we support. Unfortunately, those tools are most effective when supported by loads of money.

  5. More nonsensical equivalences.

    If someone proposed to build solar panels on the AT. I’m quite sure they would encounter the same issues and yes from environmentalists.

    If you want to build ANYTHING – ON the Appalachian Trail – you better have a darn good reason – and there actually is a process for that – as there should be when impacting something of national significance.

    And the simple truth is that the ACP is NOT a national or even a regional necessity; it’s a for-profit venture that is not a regional need – just a business venture.

    Solar Panels are the same and they are entitled to the same treatment if they are not impacting a national resources – just like any other business – like a cattle farm or a cell tower or a power line right of way – sited on land that is not “significant”.

    And to give a reasonable example – I-64 was permitted to cut the AT and it did have to go through a rigorous justification process and it was determined to be “worth” doing.

    The practice here in BR of equating ALL environmentalists of one monolithic view is not fair nor valid. The environmental community is diverse and they do split on issues – sometimes vociferously.

    Natural Gas is one of those issues. Some environmentalists see natural gas as a critical “bridge” fuel that is vital to making wind/solar “work” while others do not.

    But the idea that we just designate any/all environmentalists as of one mind – across the board – is – just dumb… and a disservice to issues.

    • “More nonsensical equivalences.”

      No, Larry, I am drawing no equivalences. That’s your fevered brain at work. This post does not re-litigate the pros and cons of the ACP. Rather, I make the case that the legal tactics used to resist the ACP can be used in other contexts in ways that will harm the environmental movement.

      You would understand that if you knew how to read critically, which apparently you do not.

  6. Jim,
    I hate to be seen as piling on since your position has been totally demolished by Mom, Jane, TomH and LarrytheG, but I agree with them. Dominion, along with its ACP partners, has been trying to ram this thing through on some bogus theory that the country desperately needs more natural gas (which if you check you can see that it is in such great supply domestically that its prices are the lowest in decades). Dominion ALWAYS tries to ram stuff through like coal ash disposal when it is convenient for them. Not so on offshore wind.
    There is a point that BOTH greenies and industrialists agreed on environmental laws back in the 1960s and 1970s. Guess which Woodstock era president championed them?
     Also, you are claiming that rural, “fly over” people don’t give a hoot about global warming. Do you really think they are that dumb?

  7. The Pavlovian nature of the responses — Dominion Energy, pant, pant, drool, drool — is just astonishing. This post is not about the pros and cons of the Atlantic Coast Pipeline. Anyone capable of critical reading can understand that. The post explores what would happen if the delay-and-bloc tactics used to defeat the ACP and MVP were adopted by grassroots groups opposed to solar.

    So far, every commenter has ignored that argument. All one has to do is mention the name “Dominion,” and pant, pant, drool, drool, you guys launch into your conditioned anti-ACP responses.

    Fine, have at it. If that’s what you want to do, be my guest. But, Peter, please don’t pretend that my argument has been “totally demolished” when, in fact, my argument has not been addressed at all.

    • Pant, pant. Drool, drool

      • Ok, i will throw this bone to you. A wind project off cape cod when such rich and famous property owners such as walter cronkite and the infamous kochs opposed it

    • I hope you’re not including me in that Pavlovian characterization. Although I reference Dominion as an example of one of the players, my commentary is confined to your premise that some should forgo block and delay tactics as opposing interest might use them in kind, a position I vehemently disgree with.

      Your attempted deflection with the Pavlov arguments cements my impression that you might just be ready for public office.

  8. TomH hit the nail on the head when he said that the crux of the problem is that people do not feel that a just process was used to make these decisions and that we do not feel that either state or local government have listened to us. They are taking our land, forcing us to live with incredible danger on our own land, and we don’t share the rewards. We are also likely to be left with a stranded asset that they have no intention of removing, even when it’s not used. The balance of power between these companies and landowners is severely out of whack.

    Jim, if you want to talk about strategy, I don’t like the delay and drag out idea, either. I also hate to see people attaching themselves to equipment to slow things down. However, citizens have few tools to use against a company that has greased the skids against us – setting things up for years without our knowledge – and then tried to force their decision upon us. The system is set up to ignore our concerns and just take our property from us. I can’t absolutely promise you I won’t be forced to attach myself to equipment if they actually start building on my land where they plan – without moving it within our land as we’ve requested since this nightmare started.

    Any strategy can backfire. In the cases of the pipelines, the people are desperate to be heard and to have our concerns addressed. There are few choices left since the process has so thoroughly ignored us. They started with threats of eminent domain and never attempted to address our concerns – ignored them. I would hope that a lesson for industry from all this is: you can no longer just force your way without considering the impact on those whose land you take and without sharing the benefits with us. Their tactic is backfiring on them, I sincerely hope.

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