What Is ‘Irreparable Harm’ Anyway?

Climate Fossil Fuels
What Is ‘Irreparable Harm’ Anyway?

A Trump-appointed federal judge in Louisiana blocked the Biden Administration’s pause on new permits for liquified natural gas export facilities on Monday, ruling in favor of 16 Republican-led states that challenged the move issued in January. The decision cited the “irreparable harm” from the pause, which did not affect existing or already permitted LNG export facilities in any way.

The harm in question is financial, of course. “Plaintiff states that it will suffer irreparable financial harm because they will collect less severance taxes and earn less royalties, rents, and related payments than they would otherwise, and as such they will not likely be able to recover,” the decision reads. After a bunch more hand-waving and double-take types of arguments — West Virginia will supposedly have reduced access to natural gas because an export terminal to be built on the Louisiana Gulf Coast within a range of several years has to wait a few months for a permit — Judge James D. Cain Jr. agreed: “The Court finds that Plaintiff States have sufficiently irreparable harm that cannot be remedied without an injunction.”

The LNG permitting pause has been a source of teeth-gnashing among Big Oil executives and Republicans for months now. The scope of the reaction is barely connected to the actual effect — LNG exports have already doubled over the last few years, and projects that are already being built and are exempt from the pause will double it again soon. It seems more that the industry and its defenders see Biden’s move as a more general broadside against its continued expansion in the face of rising temperatures and stubbornly high greenhouse gas emissions. If Democrats can stop even a single new piece of dirty infrastructure from being built on the schedule Big Oil demands, what’s next?

And so we end up with Judge Cain’s at times bafflingly written decision. The administration’s pause, he writes, is “completely without reason or logic and is perhaps the epiphany of ideocracy.” I would include [sic] there, but honestly I don’t even know what that is attempting to say.

The baseline reason for the permitting pause takes an infuriating back seat. The stated intent was to allow more time to analyze the market’s need for more LNG exports, the impact on consumer costs, and critically, the potential greenhouse gas emissions impacts. A single LNG export project known as Calcasieu Pass 2 (CP2), if completed, would cause 20 times more emissions than the controversial Willow Project in Alaska — more than five billion metric tons over three decades. Those are decades the world is theoretically using to get to net-zero, not locking in entire continents’ worth of annual emissions to sell some more gas.

“Irreparable” is a useful word here. One ton of CO2 emitted today will stay in the atmosphere for a thousand years. At least with our current technology, its warming potential “cannot be remedied,” in a much, much more real and impactful fashion than Louisiana’s theoretical lost tax revenue. It will go on helping generate heat waves, floods, and unprecedented hurricanes, for five times as long as it has been since the Louisiana Purchase. Building these facilities is, from a climate perspective, effectively impossible to undo.

Huge LNG export terminals would also contribute more localized pollution to an area already known to be dangerous to human health. So-called “Cancer Alley,” the stretch of Louisiana home to a litany of factories, refineries, and oil and gas infrastructure, would only get worse as LNG facilities proliferate. Late last year, more than 200 environmental and health groups urged the DOE to reject CP2, and noted that its neighbor CP1 already violated air quality permits on 84 percent of the days it was in operation.

“This localized pollution and concentration of export facilities forces the communities in the surrounding area to bear the brunt of harmful pollution and chemicals like benzene and nitrogen oxides (NOx) that cause cancer, heart disease, and asthma,” they wrote. If reduced royalty payments are “irreparable harm,” what’s dying from lung cancer?

It is unclear exactly what effect Judge Cain’s ruling will have on the ground. CP2 just received approval from the Federal Energy Regulatory Commission (FERC) last week, a separate process from the Department of Energy permit that falls under the pause’s purview; with the DOE now apparently back on the hook, its approval may be forced sooner rather than later. The White House, for its part, is apparently “disappointed” in the ruling; whether “irreparably” so was unclear.

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