Freaking Ninth Circuit. Don't they know that gasoline is five dollars a gallon!
A natural energy company wants to build a natural gas pipeline from Wyoming to Oregon. Create jobs. Supply energy. Heat homes. Yes, in the midst of its 678 miles, it's going to inevitably cross some rivers and streams. Two hundred and nine of them, to be exact.
And, yes, constructing the pipeline will inevitably cause some damage to the wildlife that calls those streams homes. Especially to some crazy species I've never heard of before -- perhaps because they are so uncommon as to be threatened and/or endangered -- like the Lahontan cutthroat trout, the Warner and Lost River suckers, the Modoc sucker, etc.
But the federal government nonetheless approved the pipeline, holding -- after exhaustive review -- that the project wouldn't actually make any of these species extinct. Sure, there would definitely be some incidental disruptions while they dug through the streams, and yes, a tiny number of late-born little ones would surely die.
But that's the price of progress. Everything we do is going to kill something. And need I remind you: Gas is five dollars a gallon. People need to heat their homes. Electricity needs to be generated. The pipeline makes sense, which is why it gets approved.
Of course, the inevitable muddle-headed tree-huggers file suit. But the district court dismisses the action, finding that the federal government's approval was far from "arbitrary and capricious." So the gas gets to flow.
At least until the Ninth Circuit gets involved. Which, today, reverses and remands. Stopping the pipeline in its tracks.
Shades of the Keystone Pipeline, eh? Except now it's unelected judges instead of a president we can boot out of office.
All of the above is one way to look at the issue. And assuredly is the way a large number of people will spin today's decision.
But let me suggest that Judge Berzon's opinion actually makes a fair amount of sense.
It's true that the federal government approved the project. But it did so in light of a lot of promises by the owner of the pipeline that they'd do lots of stuff to mitigate (i.e., reduce) the impact of the project on wildlife. Without those repeated promises, a lot more fish would die, and approval might well not have been forthcoming (and/or justified).
Those promises, however, were often written in classic lawyer-speak. The builder promised to do X but only "in its sole discretion" and the like. It promised to engage in Z but only if funds -- which it only agreed to partially pay -- were "forthcoming," and if not, would merely "consult" about what to do next. Moreover, these promises were made, and the federal government could enforce them if it wanted to. But if it didn't -- if it thought that energy was more important -- no one else could enforce them, because the conditions weren't enforceable under the Act; e.g., environmental groups could not sue if the builder failed to comply with its obligations and started killing endangered species willy-nilly as a result.
You can see why the Ninth Circuit -- even a non-"fuzzy headed" one -- might have a problem with that. Were all the promises kept, it might well be that the project wouldn't have a big impact on the environment. But there was insufficient proof that this would, in fact, be the case, and the approval impermissibly assumed that these non-enforceable conditions would invariably be performed. When there is, in fact, a fair reason to believe they might not be.
One more thing. The project will require using over a third of a billion gallons of water in order to keep down dust, test the pipeline, etc. The federal government says that "might seem like a lot" to an unsophisticated person. Especially in an area (like the one at issue here) that's not exactly teeming with excess water; e.g., is partially a desert. But the government assures us that a third of a billion gallons ain't that much when you really think about it. After all, the Pacific Ocean is 187 quintillion gallons. What's a third of a billion between friends?
But Judge Berzon responds that a third of a billion still seems like a lot, even after she thinks about it. To which the government responds: But, you silly federal judge, you shouldn't worry about the impact of the project using up all that groundwater, because the project's using groundwater, not water from a stream, and fish only live in streams, not underground.
To which Judge Berzon responds: "Duh. I'm not an idiot." Noting that even though fish don't live underground -- and thanks for that update, counsel for the government -- when you take water out of the ground, that may well affect the amount of water in a stream. Because guess where some of that water in the stream comes from? The ground, dude. You know. Seepage and stuff. Or at least that's what we learned in third grade Earth Science, and I'm pretty sure is still true today.
Its for these reasons that the Ninth Circuit reverses and remands. Holding not that the project cannot be approved, but rather, that such approval should be based on a rational assessment of the impact of the project on the environment. And that an approval that -- as here -- operates under an erroneous assumption that numerous promises will invariably be followed (despite the absence of any means of private enforcement) and that groundwater won't affect streamwater doesn't qualify. It's arbitrary and capricious. So try again using accurate assumptions. And if approval's again forthcoming, that's fine. Just make it make sense.
So one way to view this case is yet another example of a hippy vegan Ninth Circuit siding with their similarly unkempt environmental brethren to stand in the way of progress. But the reality, I'll submit, is actually quite different from the way many commentators will view and/or spin today's opinion.