At the end of May, the Supreme Court took a major bite out of the Environmental Protection Agency's (EPA) ability to protect wetlands under the Clean Water Act. Credit: Brian Bienkowski
02 June 2023
Opinion: Supreme Court undoing 50 years’ worth of environmental progress
The Supreme Court has taken a brazen anti-regulatory turn. It’s our planet and health that will suffer.
For the past few months, Americans have faced multiple political distractions: Ukraine, inflation, AI, whether or not we intentionally nuke our own economy.
With all of these hyper-dramas, we quietly managed to harpoon some of the half-century-old cornerstones of environmental law.
How — and why — on Earth did we do that?
Supreme Court takes aim at wetlands
At the end of May, the Supreme Court took a major bite out of the Environmental Protection Agency's (EPA) ability to protect wetlands under the Clean Water Act. An Idaho couple initiated the case in 2007 when the Clean Water Act prevented them from building a home on a property that contained wetlands.
Over the next 16 years, Sackett v. EPA became the focal point for farmers, homebuilders, industrialists, anti-regulatory groups and many more who saw the EPA as an out-of-control federal agency.
Before a Supreme Court re-cast by three conservative Trump nominees, the 5-4 SCOTUS vote actually saw Trump nominee Brett Kavanaugh side with the court’s three remaining liberal justices. But the Sackett ruling played the same role for EPA politics that the 2022 Dobbs case did for neutralizing Roe v. Wade in abortion rights.
In June 2022, West Virginia v. EPA was another long-simmering case on the EPA’s ability to regulate power plants for greenhouse gas emissions. The court’s full 6-3 conservative majority ruled in favor of West Virginia Attorney General Patrick Morrisey and more than a dozen of his state colleagues. The decision monkey-wrenched the Biden administration’s ability to meet carbon reduction goals under the Paris climate accord.
But wait, there’s more! Also, in June 2022, a federal district court scored a win for environmental advocates by knocking down Trump administration rules limiting Endangered Species Act enforcement. That one, or other Endangered Species Act cases, will fall into the lap of SCOTUS sooner rather than later.
SCOTUS anti-regulatory turn
Justice Elena Kagan has been a consistent voice of futile outrage over the Court’s anti-regulatory turn. In a dissent to the Sackett decision last week, she wrote that the Court’s majority had its “thumb on the scale” of justice.
With Trump’s three relatively young lifetime appointees, SCOTUS seems locked into a generation of anti-regulatory, pro-business judgment. And the judicial undercard? In his single term, Trump made 54 appeals court and 174 federal court picks, effectively tying up much of the federal courts system before reaching the Supreme Court.
By now, surely you must be thinking it’s a good thing that there are two other branches of government. But no. Not this week.
Debt limit giveaway to oil and gas
As a major giveaway in the compromise to raise the debt limit, President Biden and the congressional Democrats agreed to “streamline” the permitting process for energy projects. That meant weakening the National Environmental Policy Act (NEPA), another key law from 1970. NEPA required an environmental impact statement for any consequential development using federal land or funds.
Oil and gas pipeline projects would benefit deeply and quickly, as would methane export projects and new plastics factories stateside, with appeals and public comment periods shortened.
It was progressive Rep. Jared Huffman who told the Washington Post, “They must think we’re really, really stupid,” (if Republican leaders thought the Dems’ leaders would agree to this).
Then, the Democrats did agree to it.
The environment as a political pawn
US Supreme Court Justice Neil Gorsuch in 2019. Gorsuch's mom, Anne Gorsuch Burford, was Ronald Reagan’s first EPA administrator and was openly hostile to the agency she ran.
I’m afraid that this illustrates just how little clout environmental issues still have. Even as we proclaim climate change an “existential” threat, it’s one of the first items tossed under the bus.
It’s a far cry from the time when the high court had its own treehugger. Justice William O. Douglas served 36 years on the court. He once asked during a case involving a ski resort if trees should have the same rights as humans.
Today’s court has a bizarre, mirror-image environmental twist of its own. Justice Neil Gorsuch was the first of Trump’s appointees. His mom, Anne Gorsuch Burford, was Ronald Reagan’s first EPA administrator. She openly expressed contempt for the agency’s mission and was forced out by scandal after two years.
Now her son and other Trump appointees are taking up her cause — and it’s our planet that will suffer.
A Department of Energy advisory committee warns that current growth rates in the hydrogen sector are insufficient for meeting 2050 net-zero emission targets.
The National Petroleum Council's report calls for increased policy support to scale hydrogen production and manage natural gas emissions effectively.
Recommendations include extending tax subsidies and boosting infrastructure to facilitate hydrogen industry development and adoption.
Key quote:
" ... in five years or 10 years, the energy status quo is going to be obsolete."
— Jennifer Granholm, Energy Secretary.
Why this matters:
While hydrogen power holds significant promise for helping meet climate goals due to its clean and versatile energy solutions, its growth in the U.S. requires overcoming economic, technological and policy barriers.
CAMERON PARISH, La. — Late into the night, John Allaire watches the facility next to his home shoot 300-foot flares from stacks.
He lives within eyesight of southwest Louisiana’s salty shores, where, for decades, he’s witnessed nearly 200 feet of land between it and his property line disappear into the sea. Two-thirds of the land was rebuilt to aid the oil and gas industry’s LNG expansion. LNG — shorthand for liquified natural gas – is natural gas that's cooled to liquid form for easier storage or transport; it equates to 1/600th the volume of natural gas in a gaseous state. It’s used to generate electricity, or fuel stove tops and home heaters, and in industrial processes like manufacturing fertilizer.
In the U.S., at least 30 new LNG terminal facilities have been constructed or proposed since 2016, according to the
Oil and Gas Watch project. Louisiana and Texas’ Gulf Coast, where five facilities are already operating, will host roughly two-thirds of the new LNG terminals – meaning at least 22 Gulf Coast LNG facilities are currently under construction, were recently approved to break ground or are under further regulatory review.
Although the U.S. didn’t ship LNG until 2016, when a freight tanker left, a few miles from where Cameron Parish’s LNG plants are today, last year the country became the global leader in LNG production and export volume, leapfrogging exporters like Qatar and Australia. The
EIA’s most recent annual outlook estimated that between the current year and 2050, U.S. LNG exports will increase by 152%.
Allaire, 68, watches how saltwater collects where rainwater once fed the area’s diminishing coastal wetlands. “We still come down here with the kids and set out the fishing rods. It's not as nice as it used to be,” he told
Environmental Health News (EHN).
That intimacy with nature drew Allaire to the area when he purchased 311 acres in 1998. An environmental engineer and 30-year oil and gas industry veteran, he helped lead environmental assessments and manage clean-ups, and although retired, he still works part-time as an environmental consultant with major petroleum companies. With a lifetime of oil and gas industry expertise, he’s watched the industry's footprint spread across Louisiana and the Gulf of Mexico’s fragile shores and beyond. Now that the footprints are at the edge of his backyard, Allaire is among a cohort of organizers, residents and fisher-folk in the region mobilizing to stop LNG facility construction. For him, the industry’s expansion usurps the right-or-wrong ethics he carried across his consulting career. For anglers, oil and gas infrastructure has destroyed fishing grounds and prevented smaller vessels from accessing the seafood-rich waters of the Calcasieu River.
From the view of Allaire’s white pickup truck as he drives across his property to the ocean’s shore, he points to where a new LNG facility will replace marshlands. Commonwealth LNG intends to clear the land of trees and then backfill the remaining low-lying field.
“You see what’s happening with the environment,” Allaire said. “When the facts change, I got to change my mind about what we’re doing.”
Community bands together
John Allaire, left, purchased 311 acres in Cameron Parish in 1998, and has watched the oil and gas industry's footprint spread to his property.
Credit: John Allaire
During an Earth Day rally in April, community members gathered in the urban center of Lake Charles to demand local oil and gas industries help deliver a safer, healthier future for all. In between live acts by artists performing south Louisiana’s quintessential zydeco musical style, speakers like James Hiatt, a Calcasieu Parish native with ties to Cameron Parish and a Healthy Gulf organizer, and RISE St. James organizer Sharon Lavigne, who’s fighting against LNG development in rural Plaquemines Parish near the city of New Orleans, asked the nearly 100 in attendance to imagine a day in which the skyline isn’t dotted by oil and gas infrastructure.
Not long ago, it was hard to imagine an Earth Day rally in southwest Louisiana at all. For decades, the area has been decorated with fossil fuel infrastructure. Sunsets on some days are highlighted by the chemicals in the air; at night, thousands of facilities’ lights dot the dark sky.
“It takes a lot of balls for people to start speaking up,” Shreyas Vasudevan, a campaign researcher with the Louisiana Bucket Brigade, told EHN in the days after the rally. In a region with its history and economy intertwined with oil and gas production, “you can get a lot of social criticism – or ostracization, as well – even threats to your life.”
Many are involved in local, regional and national advocacy groups, including the Louisiana Bucket Brigade, Healthy Gulf, the Sierra Club, the Natural Resources Defense Council, the Turtle Island Restoration Network, the Center for Biological Diversity and the National Audubon Society.
“You see what’s happening with the environment,” Allaire said. “When the facts change, I got to change my mind about what we’re doing.” - John Allaire, environmental engineer and 30-year oil and gas industry veteran
But environmental organizers are fighting a multi-billion-dollar industry with federal and state winds at its back. And LNG’s federal support is coupled with existing state initiatives.
Under outgoing Louisiana Gov. John Bel Edwards — a term-limited Democrat — the state pledged a goal of reaching net-zero greenhouse emissions by 2050. Natural gas, which the LNG industry markets as a cleaner-burning alternative, is cited as one of the state’s solutions. Louisiana is the only state that produces a majority of its carbon emissions through fossil fuels refining industries, like LNG, rather than energy production or transportation. Governor Edwards’ office did not return EHN’s request for comment.
This accommodating attitude towards oil and gas industries has resulted in a workforce that’s trained to work in LNG refining facilities across much of the rural Gulf region, said Steven Miles, a lawyer at Baker Botts LLP and a fellow at the Baker Institute’s Center on Energy Studies. Simultaneously, anti-industrialization pushback is lacking. It’s good news for industries like LNG.
“The bad news,” Miles added. “[LNG facilities] are all being jammed in the same areas.”
One rallying cry for opponents is local health. The Environmental Integrity Project found that LNG export terminals emit chemicals like carbon monoxide –potentially deadly– and sulfur dioxide, of which the American Lung Association says long-term exposure can lead to heart disease, cancer, and damage to internal or female reproductive organs.
An analysis of emissions monitoring reports by the advocacy group the Louisiana Bucket Brigade found that Venture Global’s existing Calcasieu Pass facility had more than 2,000 permit violations.That includes exceeding the permit’s authorized air emissions limit to release nitrogen oxides, carbon monoxide, particulate matter and volatile organic compounds 286 out of its first 343 days of operation.
The Marvel Crane, the first liquid natural gas carrier to transport natural gas from the Southwest Louisiana LNG facility, transits a channel in Hackberry, Louisiana, May 28, 2019.
“This is just one facility,” at a time when three more facilities have been proposed in the region and state, Vasudevan said. Venture Global’s operational LNG facility — also known as Calcasieu Pass — “is much smaller than the other facility they’ve proposed.”
In an area that experienced 18 feet of storm surge during Hurricane Laura in 2020 — and just weeks later, struck by Hurricane Delta — Venture Global is planning to build a second export terminal Known as “CP2,” it’s the largest of the roughly two dozen proposed Gulf LNG export terminals, and a key focal point for the region’s local organizing effort.
Residents “don’t really want LNG as much as they want Cameron [Parish] from 1990 back,” Hiatt told EHN of locals’ nostalgia for a community before storms like Rita in 2005 brought up to 15 feet of storm surge, only for Laura to repeat the damage in 2020. Throughout that time, the parish’s population dipped from roughly 10,000 to 5,000. “But the wolf knocking at the door is LNG. Folks in Cameron think that's going to bring back community, bring back the schools, bring back this time before we had all these storms — when Cameron was pretty prosperous.”
“Clearly,” for the oil and gas industry, “the idea is to transform what was once the center of commercial fishing in Louisiana to gas exports,” Cindy Robertson, an environmental activist in southwest Louisiana, told EHN.
Helping fishers’ impacted by LNG is about “actual survival of this unique culture,” Cooke said.
In a measure of organizers’ success, she pointed to a recent permit hearing for Venture Global’s CP2 proposal. Regionally, it’s the only project that’s received an environmental permit, but not its export permit, which remains under federal review. At the meeting, some spoke on the company’s behalf. As an organizer, it was a moment of clarity, Cooke explained. Venture Global officials “had obviously done a lot of coaching and organizing and getting people together in Cameron to speak out on their behalf,” Cooke said. “So, in a way, that was bad. But in another way, it shows that we really had an impact.”
“It also shows that we have a lot to do,” Cooke added.
Environmental organizers like Alyssa Portaro describe a sense of fortitude among activists — she and her husband to the region’s nearby town of Vinton near the Texas-Louisiana border. Since the families’ relocation to their farm, Portaro has worked with Cameron Parish fisher-folk.
“I’ve not witnessed ‘community’ anywhere like there is in Louisiana,” Portaro told EHN. But a New Jersey native, she understands the toll environmental pollution has on low-income communities. “This environment, it’s so at risk — and it’s currently getting sacrificed to big industries.”
“People don’t know what we’d do without oil and gas. It comes at a big price,” she added.
Southwest Louisiana’s Cameron Parish is one of the state’s most rural localities. Marine economies were the area’s economic drivers until natural disasters and LNG facilities began pushing locals out, commercial fishers claim.
Credit: Xander Peters for Environmental Health News
Residents “don’t really want LNG as much as they want Cameron [Parish] from 1990 back,” James Hiatt , a Healthy Gulf organizer, told EHN. "But the wolf knocking at the door is LNG."
Credit: Xander Peters for Environmental Health News
For the most part, Cameron Parish’s life and economy has historically taken place at sea. As new LNG facilities are operational or in planning locally, locals claim the community they once knew is nearly unrecognizable.
Credit: Xander Peters for Environmental Health News
A disappearing parish
The stakes are seemingly higher for a region like southwest Louisiana, which is the epicenter of climate change impacts.
In nearly a century, the state has lost roughly 2,000 square miles of land to coastal erosion. In part driving the state’s erosion crisis is the compounding impacts of Mississippi River infrastructure and oil and gas industry activity, such as dredging canals for shipping purposes, according to a March study published in the journal Nature Sustainability. Louisiana’s Coastal Protection and Restoration Authority said Cameron Parish could lose more land than other coastal parishes over the next 50 years. A recent Climate Central report says the parish will be underwater within that time frame.
On top of erosion and sea level rise impacts, in August, 2023, marshland across southwest Louisiana’s Cameron Parish burned. The fires were among at least 600 across the Bayou State this year. Statewide, roughly 60,000 acres burned — a more than six-fold increase of the state’s average acres burned per year in the past decade alone.
But while the blaze avoided coastal Louisiana communities like Cameron Parish, the fires represented a warning coming from a growing chorus of locals across the region — one that’s echoes by the local commercial fishing population, who claimed to have experienced unusually low yields during the same time, according to a statement from a local environmental group. At the site of the Cameron Parish fires are locations for two proposed LNG expansion projects.
"The idea is to transform what was once the center of commercial fishing in Louisiana to gas exports.” - Cindy Robertson, an environmental activist in southwest Louisiana
It was an unusual occurrence for an area that’s more often itself underwater this time of year due to a storm surge from powerful storms. For LNG expansion’s local opposition, it was a red flag.
As the Louisiana Bucket Brigade has noted prior, the confluence of climate change’s raising of sea levels and the construction of LNG export terminals — some are proposed at the size of nearly 700 football fields — are wiping away the marshland folks like Allaire watched wither. Among their fears is that the future facilities won’t be able to withstand the power of another storm like Laura and its storm surge, which wiped away entire communities in 2020.
Amidst these regional climate impacts, LNG infrastructure has shown potential to exacerbate the accumulation of greenhouse gasses that cause global warming. For the most part, LNG is made up of methane — a greenhouse gas that’s more than 80 times more potent than carbon dioxide in the atmosphere. Among the 22 current LNG facility proposals, the advocacy group Sierra Club described a combined climate pollution output that would roughly equal to that of about 440 coal plants.
The climate impacts prompt some of the LNG industry’s uncertainty going forward. It isn’t clear if Asian countries, key importers of U.S. LNG, will “embrace these energy transition issues,” said David Dismuke, an energy consultant and the former executive director of Louisiana State University’s Center for Energy Studies. Likewise, European nations remain skeptical of embracing LNG as a future staple fuel source.
“They really don't want to have to pull the trigger,” Dismukes added, referring to Europe’s hesitation to commit more resources to exporting LNG from the American market. “They don't want to go down that road.”
While there will be a tapering down of natural gas supply, Miles explained, “we’re going to need natural gas for a long time,” as larger battery storage for renewables is still unavailable.
“I'm not one of these futurists that can tell you where we're going to be, but I just don't see everything being extreme,” Dismukes said. “I don't see what we've already built getting stranded and going away, either.”
For now, LNG seems here to stay. From 2012 to 2022,U.S. natural gas demand — the sum of both domestic consumption and gross exports — rose by a whopping 43%, reported the U.S. Energy Information Administration, or EIA. Meanwhile, in oil and gas hotbeds like Louisiana and Texas, natural gas demand grew by 116%.
Throughout 25 years, Allaire has witnessed southwest Louisiana’s land slowly fade, in part driven by the same industrial spread regionally. Near where the front door of his travel trailer sits underneath the aluminum awning, he points to a chenier ridge located near the end of the property. It’s disappearing, he said.
“See the sand washing over, in here?” Allaire says, as he points towards the stretches of his property. “This pond used to go down for a half mile. This is all that's left of it on this side.”
Prof. Rachel Lowe emphasizes the need for preparedness as warmer climates allow mosquitoes to inhabit new regions, potentially introducing diseases to immunologically naive populations.
Dengue fever is spreading rapidly; the Asian tiger mosquito is now found in 13 European countries.
Climate-related droughts and floods enhance virus transmission through increased mosquito breeding sites.
If current warming trend continues, the number of people living in place where these vectors thrive is expected to double to 4.7 by 2100.
Key quote:
"Global warming due to climate change means that the disease vectors that carry and spread malaria and dengue [fever] can find a home in more regions, with outbreaks occurring in areas where people are likely to be immunologically naive and public health systems unprepared."
— Rachel Lowe, head of the global health resilience group at the Barcelona Supercomputing Center.
Why this matters:
As global temperatures rise, the habitats suitable for mosquitoes are expanding. This expansion means that more people are at risk of dengue fever as these mosquitoes bring the disease to new areas.
American solar manufacturers are calling for the U.S. government to impose measures against Asian countries allegedly dumping subsidized panels into the market, arguing this threatens the domestic industry.
U.S. manufacturers argue that solar panels subsidized by China, but manufactured in other Asian countries, are damaging the U.S. market.
The petition targets imports from Cambodia, Malaysia, Vietnam and Thailand, which represent 84% of U.S. solar panel imports in the last quarter of 2023.
The controversy stirs debate within the solar sector, with some warning that tariffs could disrupt growth and escalate costs for consumers.
China responded that their leading place in the global solar panel market is attributable to "strong performance and full-on market competition, nut subsidies."
Key quote:
"We are seeking to enforce the rules, remedy the injury to our domestic solar industry and signal that the U.S. will not be a dumping ground for foreign solar products."
— Tim Brightbill, attorney for the American Alliance for Solar Manufacturing Trade Committee, the group that filed the petition.
Why this matters:
American firms often argue that Chinese and other Asian manufacturers benefit from significant government subsidies, lower labor costs and less stringent regulations. This can result in lower production costs and cheaper products, making it difficult for American manufacturers to compete on price.
Tribes in southwestern Arizona are reaching out to the United Nations for assistance after a U.S. court allowed a major green energy project to proceed through Indigenous lands.
A U.S. judge denied Indigenous nations' plea to halt a $10 billion wind-transmission line under the name of SunZia which would affect tribal lands in Arizona.
Despite supporting green energy, the tribes criticize the lack of due process and community involvement from Pattern Energy, the Canadian-owned parent company of the project.
Pattern Energy claims the project is the largest in U.S. history, aiming to power millions across multiple states by 2026.
Key quote:
“They are doing the same thing as fossil fuel. It’s just more trendy.”
— Andrea Carmen, member of the Yaqui tribe.
Why this matters:
Many lands in the Southwest that are proposed for renewable energy projects, like solar and wind farms, belong to Native American tribes. The development of large-scale renewable energy projects on these lands can lead to the destruction or desecration of sacred sites, burial grounds, and other culturally important locations and violate the right to self-determination of these communities.
A recent analysis indicates Tesla, renowned for its electric vehicles, may be shifting focus from car manufacturing to becoming a key player in energy storage and electricity supply.
Chinese competitor BYD surpassed Tesla as the biggest global seller of EVs. Other competitors like Ford, Hyundai and Rivian are also catching up in the U.S. market.
As Tesla's EV's lose a share of the market, the company is diversifying from its EV roots to focus more on energy solutions like battery storage and electric grids.
Despite current challenges in its car business, Tesla's energy sector profits surged by 140% from last year.
With products like Megapacks and Powerwalls, the company aims to dominate the clean energy market.
Why this matters:
Tesla's strategic pivot could make it a central figure in the transition to renewable energy, impacting how electricity is delivered and stored. Their technological advancements in energy solutions might set the stage for broader adoption of clean energy.
Wanjira Mathai, from the World Resources Institute, advocates for processing Africa's resources locally to aid in the global shift toward a low-carbon future.
Processing locally can enhance income and reduce carbon emissions from transporting raw materials.
Mathai emphasizes that investing in local processing is crucial for building sustainable and resilient African economies.
Key quote:
“There’s a real opportunity in green industrialisation(...) We have to build resilience that is deep, that is anchored in wealth creation.”
— Wanjira Mathai, managing director for Africa and global partnerships at the World Resources Institute.
Why this matters:
Africa's abundant resources have historically fueled the global economy, yet little of the economic benefits from them has remained in the continent. Moving up in the value chain can foster economic independence and environmental sustainability for local communities.
