The bottom-line holding in the U.S. Court of Appeals’ recent opinion in Appalachian Voices v. Fed. Energy Reg. Comm’n, No. 24-1094 (June 6, 2025), that FERC was ok when it allowed a pipeline company an extension of time to complete the project isn’t all that surprising. And indeed, it isn’t all that interesting except to you FERC nerds. And were the court to have stopped there, we likely would not have posted this one.
But do yourself a favor and skip the majority opinion (unless, of course, you are a FERC nerd, then by all means don’t skip it), and check out the concurring opinion. Scroll all the way to page 24 of the pdf, where Judge Henderson sums up well the vibe in this case and other similar challenges to not just pipelines, but to pretty much everything.
We have labels for these type of objections, from NIMBY to BANANA, but the acronym that presents itself as the most applicable here might be DBTD (“death by a thousand days”). Slow-walk a project and eventually they’ll tap out. Kill it with time. The opening paragraphs of Judge Henderson’s concurrence set the tone and are well-worth reading:
America was once a nation that built. In just over a year, we erected the world’s tallest building: the Empire State Building. Between 1915 and 1925, we doubled the percentage of U.S. homes with electrical service, from 20 to 40 per cent. By 1940, we doubled those figures again. But that progress has subsequently ground to a halt. Since 1970, productivity growth in the construction industry has been on an unyielding decline. Our power grid has become bottlenecked. We have more pipelines in service today that were built pre-1970 than in the fifty-five years since. The sources of our slowdown are myriad. But one driving factor of our national sclerosis has been lawsuits such as this one.
Petitioners—a collection of environmental groups—have developed a cottage industry that uses the nation’s environmental laws to retard new development. Petitioners deluge permitting agencies with dubious claims. The agencies spend years writing thousands of pages of environmental review in an attempt to stave off litigation. Often, however, no sooner do agencies approve new development than they find themselves under a tidal wave of litigation from environmental groups. These groups do not need to win their lawsuits. Indeed, they rarely do. Yet they emerge victorious because delay is the coin of the realm. Developers—overwhelmed by the torrent of challenges—often abandon their projects rather than weather the storm. Many more are cowed from even entering the market.
Today’s case is typical. Petitioners waged an unrelenting campaign to drive Intervenor Mountain Valley from the natural gas market. For years, they launched challenge after challenge to every state and federal permit necessary to the construction of Mountain Valley’s flagship project, Mainline. That campaign was only ended when the Congress approved all of Mountain Valley’s permits and stripped the federal courts of jurisdiction to entertain further suits. With Mainline now out of reach, Petitioners have turned to its spin-off project, Southgate. Both FERC and this Court upheld Southgate’s environmental review and market analyses. But because Petitioners caused so many years of delay, Mountain Valley was forced to seek an extension of its deadline. That extension request has become a beachhead for a fresh assault.
Petitioners argue that their past efforts have so delayed Southgate that FERC’s analyses are now stale. They ask us to send the agency back to the drawing board to assess conditions from scratch. As today’s majority correctly holds, their claims are without merit. FERC properly found that its market and environmental analyses remain valid and that good cause exists to grant Mountain Valley an extension. And, as is so often the case, Petitioners’ remaining objections may be resurrected in future Commission proceedings, where they will receive yet another bite at the apple.
In sanctioning this system, I believe courts—ours in particular—have misinterpreted and misapplied the environmental laws. In the process, we have enabled interest groups to transform the bench into a tool to stymie any new development. It is long past time to correct our mistake.
Dissent at 1-2.
In case that it too much to digest in one breath there’s this, a single sentence summing it up:
Because of judicial tinkering with NEPA’s original design, litigation became a fixed feature of agencies’—and developers’—efforts to undertake any new action: building housing, power plants, ports, telecommunications and other critical infrastructure suddenly became enmeshed in years of paperwork delay and lawsuits.
The DBTD strategy isn’t of course limited to pipelines or FERC, but is an oft-employed angle, most notoriously in California, home of the infamous CEQA.
Will that change any time soon?
Appalachian Voices v. Fed. Energy Reg. Comm’n, No. 24-1094 (June 6, 2025)