This article originally ran on Forbes.com on July 24, 2023. All rights reserved.
Daniel B. Markind is a Forbes.com energy column contributor. The views expressed in this article are not to be associated with the views of Flaster Greenberg PC.
Shortly after an important bridge on Interstate 95 just north of downtown Philadelphia collapsed on June 11, 2023, shutting down the entire highway in that area due to a disastrous truck fire on the street below, Pennsylvania Governor Josh Shapiro promised to rebuild the structure quickly by working round the clock. Much was at stake. I-95 is arguably the most important road in the entire federal interstate system. It connects Maine to Florida, and all points in between, and it is essential to modern life and the economy just about everywhere it passes through.
Governor Shapiro refused to give an exact timeline to have the essential corridor up and running but speculation was that he hoped to have the bridge repaired within two months. Many thought that was wildly optimistic. Many speculated the interstate would be blocked for at least a year. It actually took 12 days.
Using a novel and clever engineering process that involved filling the gap left by the bridge collapse by piling tons of recycled glass aggregate into the underpass area, bringing what had previously been the bridge up to surface level and then paving it over (Source), Pennsylvania Department of Transportation workers performed the herculean task in under two weeks.
Following the reopening, Governor Shapiro published a column in the Washington Post detailing some of the steps taken that allowed this repair to occur so quickly. Among them were the availability of infrastructure funding due to the recent Infrastructure Investment and Jobs Act and the fast tracking of the permitting process that was permitted by a disaster declaration the Governor signed within 24 hours of the collapse. Indeed, Governor Shapiro wrote that “…some bureaucratic requirements were waived completely.” (Source).
In contrast to the remarkable speed of the I-95 rebuild, another major infrastructure project on the east coast remains snarled in delay. On July 11, the Fourth Circuit Court of Appeals, sitting in Richmond, Virginia, once again temporarily blocked construction of the Mountain Valley Pipeline, a natural gas pipeline that would transport up to 2 billion cubic feet a day of gas roughly 1000 miles from West Virginia to Tennessee and Virginia. The pipeline, which was approved by the Federal Energy Regulatory Commission (FERC) in 2017 with construction starting in 2017, has been subject to numerous delays, including stays issued by courts due to challenges by environmental groups.
During the recent negotiations in Congress over the rise of the federal debt ceiling, West Virginia Senator Joe Manchin succeeded in inserting a provision in the legislation that transferred any court jurisdiction over the project from the Fourth Circuit to the DC Circuit. Totally disregarding that important fact, the Fourth Circuit issued back-to-back stay orders of prior federal approvals, the first on reissued approvals from the Forest Service and the second from the Bureau of Land Management, each expressly permitting construction of a 3.5 mile section of the pipeline through the Jefferson National Forest.
Legally, the fight is fascinating and likely will have to be decided by the United States Supreme Court, as it involves the constitutionality of the Article I Congress and the Article II Executive trying to control where Article III federal courts have or do not have jurisdiction. According to constitutional legal scholars, such cases are infrequent and the law is still quite murky (Source).
Outside of the legal context, however, the issue clearly shows the difficulty in constructing infrastructure in the current legal and political environment. Unlike the I-95 project, where, remarkably, many of the required permits were “waived”, including apparently any environmental challenges to the propriety of using this new “crushed glass” method of construction, nearly all other major infrastructure projects have faced the same fate as the Mountain Valley Pipeline – that of delay after delay while seemingly endless judicial challenges slowly wind their way through the courts and/or different agencies competing for jurisdiction. Mountain Valley has the added dimension of involving fossil fuels, which needless to say is a hot button issue in this day and age of climate change, but the recent stays issued by the Fourth Circuit would seem to be those that are likely to be issued for any pipeline construction, including transmission lines for renewable energy. We’ve already seen how hard certain environmental groups will fight anything involving infrastructure, including even those making renewable energy more possible (Source). How then can we convert to a more renewable-based energy environment if we can’t even agree on building the needed infrastructure to make that happen?
It is not unusual for the United States Supreme Court, and lower courts, to seek to decide an issue on narrower procedural grounds and thereby avoid dealing with the overall context, i.e., the “merits” of a dispute. In the Mountain Valley Pipeline case, however, the context is staring the Fourth Circuit in its face, especially after a Democratic Governor (jn Pennsylvania) has just shown how quickly infrastructure projects can be carried out when there is undeniable need for them, and as the world chafes and increasingly despairs under a series of “heat domes” causing world temperatures to reach levels rarely, if ever, seen before. Our good intentions will not make renewable energy possible, only attendance to infrastructure will. If that can’t be built for decades, then our inability to see the forest for the trees may wind up subjecting us to the very fate that we presumably all want to avoid.
