There is a mounting consensus within Washington, D.C., about the need to modernize the country’s aging infrastructure. Leaders across nearly every political caucus acknowledge that maintaining the status quo is an inadequate means to support economic growth, improve quality of life or protect our communities. The big question is how to pay for the investment it will take to bring our systems up to citizens’ expectations.
Last month, Congressional Democrats announced a $1 trillion government spending package to overhaul U.S. infrastructure. President Trump’s plan, which relies much more on private sector involvement, calls for $1.5 trillion over the next 10 years. Both proposals have the right aim in sight but still fall shy of the $3.6 trillion the American Society of Civil Engineers says is needed to bring the country to a state of good repair by 2020.
There are many policy levers at lawmakers’ disposal to begin rebuilding the United States’ infrastructure: public funding, federally secured loans and stronger public-private partnerships, to name only a few. But perhaps the most obvious measure is to ensure that businesses that are investing aren’t penalized for it. While that may sound like common sense, one of the biggest obstacles in the way of midstream energy development has become courts acting as de facto regulators.
In recent months, several examples have brought to light the alarming trend of court rulings that are possibly influenced by pressure from interest groups interrupting pipeline construction. The result — a cycle of start-and-stop orders for builders — not only elevates the risk of failure at those sites, it sets a perilous precedent for industry. In effect, these rulings tell developers that even if a project is fully approved by federal and state regulators, it may very well be for naught.
Late last month, a U.S. District Court judge upheld a preliminary injunction halting construction on portions of the Bayou Bridge Pipeline in Louisiana. The decision flies in the face of the regulatory process. In fact, as judicial scholar and NYU law professor Richard Epstein has noted, “Judge Shelly Dick has adopted an aggressive reading of the phrase ‘arbitrary and capricious’ that arrogates unto the courts the power to decide which pipelines should be completed and which should be forced to remain in limbo long after construction has begun.”
The pipeline’s builders closely followed the letter of the law and fully accounted for environmental considerations. The efforts included meetings with federal, state and municipal authorities; consultation with environmental and conservation groups; surveying and mitigation planning; and ongoing coordination with federal and state offices.
The U.S. Army Corps of Engineers found that Bayou Bridge’s mitigation measures will result in a net-zero loss of surrounding wetland. The U.S. Fish and Wildlife Service concurred that the project will not adversely impact protected species in the area. In fact, builders have gone to great lengths to mitigate impacts by using specialized equipment, backfilling excavated materials and paralleling existing lines across the Atchafalaya Basin to preserve the integrity of sensitive environmental resources.
It should come as no surprise that the stop order has already had a negative impact on the company and on Louisianans. The disruption will generate as much as $950,000 in costs each day, and the construction delays risk over $12 million in lost revenue this year and more than $75 million in 2019. The first week of work stoppage required $2.2 million to de-mobilize crews and equipment, and contractors may need to lay off or furlough as many as 500 workers, according to Bayou Bridge’s court filings.
Even more confounding, the stoppage may create the kind of environmental damage it was purportedly meant to avoid. The Bayou Bridge planning had accounted for the Atchafalaya Basin’s rainy season, which is rapidly approaching, by limiting construction between April and June. Because all “action” is now prevented, exposed soils along the route may be washed away by high waters. With water levels already rising, the window to get equipment into low-lying areas to minimize sedimentation is quickly closing.
Unfortunately, the Bayou Bridge Pipeline is not an isolated case. Activists successfully stalled the Dakota Access Pipeline in North Dakota and of course the headline-grabbing Keystone XL Pipeline. Even though the regulatory processes for those projects were later upheld, the interruptions exacted serious costs. More recently, the Constitution Pipeline in New York was scrapped altogether due to external political forces.
It’s not often that Washington, D.C., is the source of common sense. But it seems lawmakers’ priorities are more aligned with the public than judges out to regulate from the bench. Nearly two-thirds of Americans say funding infrastructure should be a primary focus for policymakers. Congress and the White House are right to figure out how to fund solutions. But they should start with empowering the private sector to be an ally by streamlining the regulatory process and creating measures that stop the courts from moving the goalposts on builders.
• Craig Stevens is the spokesman for Grow America’s Infrastructure Now, a national coalition focused on promoting key infrastructure investments. Follow the Coalition on Twitter @GAINNowAmerica.
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