Lawyers specializing in migration from both sides of the barricades have a wry capsule explanation of how the law works: It Ain’t Over 'til the Migrant wins. In this explanation “wins” means “stays.”
There are American laws galore that allow the government to deport people present in the United States illegally. Why don’t they work? Well, there are also laws that enable a competent lawyer to string out his client’s deportation indefinitely until he has a wife, children, a job, a home, and a lawyer here—which almost amounts to a squatter’s right to stay.
It seems downright unreasonable to send him back to where his home used to be—at least that’s the view of the immigration bar, NGOs specializing in migration and refugee policy, media that are overwhelmingly sympathetic to migrants of every kind, all Democrats and some Republicans in Washington, academic “experts” on immigration, and so eventually of the courts trying such cases.
As the late Judge Robert Bork pointed out in his short, brilliant book, Coercing Virtue: The Worldwide Rule of Judges (AEI, 2003), modern judges implement not the law as such but a blend of the law itself and of the opinion of the law held by legal members of the highly educated upper-middle class.
That’s why the opinions of judges matter and why legal verdicts in immigration cases increasingly follow the maxim of “It ain’t over 'til the migrant wins.” And, therefore, stays.
Is that maxim now being transferred to law determining court cases on the environment and climate change? That question is raised by the proliferation of court challenges to projects to extract and transport fuels, especially fossil fuels, when those projects have survived regulatory challenges from the federal bureaucracy, and even when their cancelations are likely to provoke disputes between the U.S. and other countries.
The most recent case of such judicial intervention took place in Alaska—usually a state hospitable to the oil and natural gas industry (as well it might be)—when a federal judge canceled Willow, a massive energy investment by Conoco-Phillips on Alaska’s North Slope.
Judge Sharon Gleason of the District of Alaska ruled that the environmental impact statement for Willow should have included a ”quantitative estimate of emissions resulting from oil consumption” (or explained why the estimate could not be produced) and provided better protection for wildlife including caribou.
These are interesting proposals, but they are not exactly legal judgments. They are decisions for the political and regulatory authorities which had considered then and taken a different view to Judge Gleason. Willow had been approved by the Bureau of Land Management, supported by the Biden administration, and backed enthusiastically Alaska’s Governor, Mike Dunleavy, who is responsible to the voters for Alaska’s economic development. He responded sharply to Gleason:
We are giving America over to our enemies piece by piece. The Willow project would power America with 160,000 b/d, provide thousands of family-supporting jobs, and greatly benefit the people of Alaska.
Judge Gleason has no accountability for the economic consequences of her arbitrary judgments. She was exercising irresponsible power—or as the saying goes, legislating from the bench. Alaska voters damaged by her intervention have no way of sanctioning her for it.
Judge Gleason has spoken.
Of course, we should acknowledge that such judicial interventions sometimes favor the corporation against the regulatory bureaucracy or the decisions of lower courts. A recent example of that took place in Louisiana where a court forced the Biden administration to resume selling oil and gas leases to energy company which it had halted “temporarily” while the Interior Department reviewed them.
Higher courts may reverse that judgment on appeal—but that comes with a cost too. As the formidable columnist Mark Steyn has pointed out in the different context of libel law, “the process is the punishment.”
All these infrastructure projects are hugely expensive and take years to complete. If their approval is a constantly changing shuttlecock batted back and forth between the courts, the regulatory bureaucracy, the political world, and the industry, that will raise their costs massively, sometimes cause their cancelation, and hike the price of the final product in energy bills to the electricity consumer—who now include owners of electric cars and other electrical products. They buy such such products in order to switch from dirty fuels to greener power sources at a considerable increase in cost. That cost increase will get larger if infrastructure projects become as risky as roulette. And if you make the cost of switching heavier, fewer people will do it.
All those consequences—and more—were exemplified by President Biden’s cancelation of the nine-billion dollar Keystone Pipeline from Canada to Texas. He did this by executive order immediately upon coming into office after it had survived more than a decade of regulatory and legal challenges from the usual suspects—environmentalists, protesters claiming to represent indigenous interests, progressive billionaires: the Democratic party’s post-industrial urban base.
Par for the course, you may think. But this particular decision was unusual in two respects. In the first placed, it reversed the more common practice by which the courts override the national executive in Washington. On Keystone, Biden overrode the courts—which is usually seen by Democrats as a constitutional mortal sin. "Climate change," however, is the excuse that sweeps all rational argument aside. Second, it provoked a serious foreign policy crisis with—of all energy-producing countries—Canada! Canadian prime minister Justin Trudeau is Biden’s ideological soulmate on energy, the environment, and much else, but he still had to take his constituents into account.
That international crisis shows no sign of abating—quite the contrary—because Michigan governor Gretchen Whitmer canceled a much more important and more established pipeline between the U.S. and Canada, apparently without really grasping the extraordinary damage she was inflicting on our friendly neighbor to the north. Here's one local report:
While the Keystone project was halted in early construction, Line 5 has transported Canadian oil since 1953. More than half of Ontario’s supply passes through it, according to [the pipeline company] Enbridge. It exits Michigan at the border city of Sarnia, Ontario, and connects with another line that provides two-thirds of crude used in Quebec for gasoline, home heating oil and other products.
I would once have thought that a war with Canada was in the realm of the impossible. But Governor Whitmer may be proving me wrong. She is threatening to confiscate Enbridge’s profits and do many other terrible things if the company continues to defy her. The federal regulator seems not to agree with the governor’s arguments that the pipeline is a hazard to the environment. Enbridge points out that all the alternatives to the pipeline would be more hazardous. The Canadians seem to be united around the defense of their own oil and gas industry since it keeps Ontario and Quebec warm in winter (and Michigan's airports operating). Local Michigan businesses are largely on Enbridge's side too. The Biden administration, which is currently digging down into a lot of holes, must be wondering how on earth it got into this hole and how to get out of it.
Game over, man.
The answer is that, as in Biden’s cancelation of the Keystone pipeline, there are far too many “authorities”—executive, regulatory, state, federal, legal—which believe that their virtuous Green ideologies give them a right to intervene arbitrarily in environmental and energy issues to reach the right outcome. Which one of them prevails is now an almost random matter. For companies contemplating multi-billion dollar projects, both negotiating with regulatory authorities and going to law in these circumstances are a little like shaking a kaleidoscope or consulting an astrological chart.
The main villain in all this is the authority that should and normally would determine fairly which of all the other authorities has the right and obligation to make which decisions on what and on what legal basis. That authority is the courts. Law should offer a reasonable certainty to companies and individuals contemplating major expenses from mortgages to investment in renewables. But it can only play this role well if it reduces to the minimum its own opinionatedness on green issues.
Unfortunately, the courts are no longer impartial umpires interpreting laws passed by Congress and state legislatures. They are moving in the direction of becoming more “green” rather than more judicial as the examples quoted above demonstrate. They have their fingers on the scales of Lady Justice. It threatens both America's prosperity and its democracy if it ain't over till the Greens win. But that's the trend.