OPINION:
I’m certain we are all grateful that Vice President Kamala Harris was ecumenical enough in Tuesday night’s debate to acknowledge that she is, at least for the campaign’s duration, in favor of increased oil and natural gas production.
That’s good, especially since the increase in oil and natural gas production in the United States over the last decade has dwarfed the increase in energy provided by alternative energy sources.
Unfortunately, the judges at the U.S. Court of Appeals for the D.C. Circuit have not yet gotten the memo that the left’s long war against oil and natural gas production is apparently in cease-fire. In the last few weeks, the judges in that circuit have started their own jihad against oil and natural gas by sending back already completed permits to the Federal Energy Regulatory Commission, which Democratic appointees run.
The permits in question allow the building and operation of liquefied natural gas export terminals (the Rio Grande and Texas LNG projects) and one pipeline (Regional Energy Access). The judges, all appointed by Democrats, vacated each of the permits — which had already been issued after lengthy administrative processes — on the grounds that the commission failed to properly examine and account for environmental justice concerns (no surprise) and climate change (shocker).
Of course, those were excuses to vacate the permits. The judges’ actual goal was to establish their own ability to inject uncertainty into any infrastructure permits or, for that matter, into any federal agency process, no matter how careful or rigorous. The purpose of the exercise was to ensure that people are discouraged from investing in projects that the federal judiciary might not approve of, such as LNG export terminals.
By creating added uncertainty — even beyond the considerable uncertainty and delay imposed on projects by the federal government’s regulatory structure — the judges are trying to tell investors and project developers that the fight to build these facilities will never really be over, that they can be litigated even after the administrative state has issued a permit.
When faced with a system that gives project opponents the opportunity to litigate indefinitely, investor cash and project developers will surely head elsewhere, and the roads, bridges, export terminals, pipelines, transmission lines, power plants and all the other infrastructure that American workers, families and businesses need to grow and thrive will not get built.
It can’t be accidental that the courts’ newly discovered ability to vacate already-issued permits occurs in the wake of the Supreme Court decision in Loper Bright, which is likely to limit regulatory agencies’ ability to expand their reach. Perhaps the D.C. Circuit judges think they can regain some of the regulatory ground lost in Loper.
Or, more likely, as the nation heads toward an election that former President Donald Trump might win, the judges are hoping to create a precedent that can be used against a Trump administration that may be — in the eyes of the court — a little too enthusiastic about granting permits to those who want to build essential projects such as power plants and pipelines.
• Michael McKenna is a contributing editor at The Washington Times.
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