Amicus Curiae Brief — United States Forest Service, et al., Petitioners v. Cowpasture River Preservation Association, et al.

Nos. 18-1584, 18-1587

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In The

Supreme Court of the United States

-----------------------------------------------------------------UNITED STATES FOREST SERVICE, ET AL.,

Petitioners,

v.

COWPASTURE RIVER PRESERVATION ASS’N, ET AL.,

Respondents.

-----------------------------------------------------------------ATLANTIC COAST PIPELINE, LLC,

Petitioner,

v.

COWPASTURE RIVER PRESERVATION ASS’N, ET AL.,

Respondents.

-----------------------------------------------------------------On Writs Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

-----------------------------------------------------------------BRIEF OF AMICUS CURIAE

RICHARD J. PIERCE, JR.

IN SUPPORT OF NEITHER PARTY

-----------------------------------------------------------------RICHARD J. PIERCE, JR.

Counsel of Record

GEORGE WASHINGTON UNIVERSITY

LAW SCHOOL

2000 H Street NW

Washington, DC 20052

(703) 304-1623

rpierce@law.gwu.edu

November 5, 2019

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION ................................................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

3

I.

II.

III.

ABUNDANT AND INEXPENSIVE NATURAL GAS IS ESSENTIAL TO THE ABILITY

OF THE U.S. TO MITIGATE CLIMATE

CHANGE ...................................................

3

THE U.S. ROLE AS A NET EXPORTER

OF NATURAL GAS IMPROVES THE

PROSPECTS FOR GLOBAL MITIGATION

OF CLIMATE CHANGE ...........................

6

PIPELINES ARE ESSENTIAL TO ALLOW

NATURAL GAS TO REACH MARKETS ....

8

CONCLUSION..................................................... 10

ii

TABLE OF AUTHORITIES

Page

CASES

Northwest Central Pipeline Corp. v. State Corporation Commission of Kansas, 489 U.S. 493

(1989) .......................................................................10

MISCELLANEOUS

Alexandra Klass & Danielle Meinhardt, Transporting Oil and Gas: U.S. Infrastructure Challenges, 100 Iowa L. Rev. 947 (2015) ...................... 4, 8

Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Generating

Units, 80 Fed. Reg. 64,661 (Oct. 23, 2015) ................4

Emily Hammond & Richard Pierce, The Clean

Power Plan: Testing the Limits of Administrative Law and the Electric Grid, 7 George

Washington Journal of Energy and Environmental Law 1 (Winter 2016) .....................................6

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section

202(a) of the Clean Air Act. 74 Fed. Reg.

66,495 (Dec. 15, 2009) ...............................................3

Energy Information Administration, U.S. Crude

Oil and Natural Gas Proved Reserves (Dec.

19, 2014) ....................................................................4

Energy Information Administration, U.S. Energy-Related Carbon Dioxide Emissions, 2017

(Sep. 25, 2018) ...........................................................5

iii

TABLE OF AUTHORITIES—Continued

Page

Environmental Protection Agency, CO2 Emission Performance Rate Goal Computation

Technical Support Document for CPP Final

Rule (Aug. 2013) ........................................................4

Government Accounting Office, Pipeline Permitting: Interstate and Intrastate Natural Gas

Permitting Processes Include Multiple Steps,

and Time Frames Vary (Feb. 2013) ..........................8

International Energy Agency, IEA Finds CO2

Emissions Flat for Third Straight Year Even

As Global Economy Grew in 2016 (Mar. 17,

2017) ..........................................................................5

International Energy Agency, Global Energy

and CO2 Status Report (Oct. 9, 2019) .................. 6, 7

Richard Pierce, Natural Gas Fracking Addresses

All of Our Major Problems, 4 George Washington Journal of Energy and Environmental

Law 22 (Summer 2013) .............................................7

Richard Pierce, Pipeline Opposition Impedes

Climate Change Mitigation, The Regulatory

Review (Sep. 13, 2018) ..............................................8

Richard Pierce, State Regulation of Natural Gas

in a Federally-Deregulated Market: The Tragedy of the Commons Revisited, 73 Cornell L.

Rev. 15 (1987) ..........................................................10

Yehya M. Nasser, Commoditization of Natural

Gas, Challenges and Prospects, Society of Petroleum Engineers SPE-175759-MS (2015) .............7

1

INTEREST OF THE AMICUS CURIAE1

Richard J. Pierce, Jr. has been teaching and writing about energy law and policy for over forty years.

His books and articles have been cited in many court

opinions, including over a dozen opinions of the U.S.

Supreme Court. He has no relationship with any party

to this case or with any firm that participates in the

natural gas market. He is filing this brief in support of

neither party to help the Court understand the context

in which the case arises.

------------------------------------------------------------------

INTRODUCTION

The question in this case is whether the Forest

Service has the power to grant a right of way to a natural gas pipeline to cross beneath the Appalachian National Scenic Trail. Amicus takes no position on that

issue. Amicus wants to help the Court understand the

context in which the question arises and the environmental implications of any decision that would block

or delay construction of natural gas pipelines.

------------------------------------------------------------------

1

No person other than amicus has authored this brief in

whole or in part or made a monetary contribution toward its preparation or submission. All parties have consented to the filing of

this brief.

2

SUMMARY OF ARGUMENT

An abundant and inexpensive supply of natural

gas is essential to allow the U.S. to play a constructive

role in mitigating climate change. Use of natural gas

to generate electricity emits less than half as much carbon dioxide as use of coal to generate electricity. As a

result of advances in horizontal drilling and hydraulic

fracturing, the U.S. has increased substantially the

amount of natural gas that it produces. That increase

in supply has reduced significantly the price of natural

gas.

The availability of abundant supplies of inexpensive natural gas has created market conditions in

which firms that generate electricity have switched

from use of coal to use of natural gas. That, in turn, has

allowed the U.S. to reduce significantly the amount of

carbon dioxide that is emitted as a result of generating

electricity in the U.S. If natural gas remains abundant

and inexpensive in the U.S., it will continue to play a

major role in allowing the U.S. to mitigate climate

change both by encouraging more fuel switching from

coal to natural gas and by enabling fuel switching from

coal to carbon-free sources like solar and wind.

The abundant and inexpensive supply of natural

gas in the U.S. has enabled the U.S. to make a transition from being a net importer of natural gas to being

a net exporter of natural gas. The availability of inexpensive natural gas from the U.S. has reduced the price

of natural gas in other countries, thereby encouraging

them to mitigate climate change by switching from

3

high-carbon content coal to low-carbon content natural

gas.

A large and growing network of pipelines is essential to allow natural gas produced in the U.S. to continue to play a constructive role in mitigating climate

change. In many circumstances, the alternative to

transporting natural gas from a producing area to a

market or to a liquefied natural gas terminal for export

is to flare the natural gas in the producing area. Flaring (controlled burning of natural gas in the atmosphere) is wasteful and contributes to climate change.

Any change in the legal environment that has the effect of blocking or delaying construction of natural gas

pipelines will impair efforts to mitigate climate

change.

------------------------------------------------------------------

ARGUMENT

I.

ABUNDANT AND INEXPENSIVE NATURAL

GAS IS ESSENTIAL TO THE ABILITY OF

THE U.S. TO MITIGATE CLIMATE CHANGE.

Emissions of carbon dioxide are one of the primary

anthropogenic causes of climate change.2 Any electricity source that burns fossil fuels emits carbon dioxide.

Electric generating plants account for 38 percent of

2

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Air Act. 74

Fed. Reg. 66,495, 66,523 (Dec. 15, 2009).

4

U.S. carbon dioxide emissions.3 The quantity of the

emissions from a generating plant depends primarily

on the amount of carbon in the fuel. The only economically and technologically feasible method of reducing

emissions of carbon dioxide at present is to switch from

a high-carbon content fuel to a low-carbon content fuel

or a carbon-free fuel. Combustion of natural gas emits

less than half as much carbon dioxide as combustion of

coal per unit of electricity generated.4 Wind and solar

are carbon-free sources that emit no carbon dioxide.

Since 2004, the U.S. has more than doubled its reserves of natural gas through use of improved methods

of horizontal drilling and hydraulic fracturing.5 That

dramatic increase in reserves has increased the available supply of natural gas and reduced the price of natural gas.6 That change in market conditions has

induced many firms that generate electricity to switch

from coal to natural gas.

Between 2005 and 2017 U.S. emissions of carbon

dioxide declined by 2,360 million metric tons as a

3

Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Generating Units, 80 Fed. Reg. 64,661,

64,677 (Oct. 23, 2015).

4

Environmental Protection Agency, CO2 Emission Performance Rate Goal Computation Technical Support Document for

CPP Final Rule, p. 11 table 4 (Aug. 2013).

5

Energy Information Administration, U.S. Crude Oil and

Natural Gas Proved Reserves (Dec. 19, 2014).

6

Alexandra Klass & Danielle Meinhardt, Transporting Oil

and Gas: U.S. Infrastructure Challenges, 100 Iowa L. Rev. 947,

999-1006 (2015).

5

result of switching from coal to natural gas.7 That decline allowed the U.S. to reduce its emissions of carbon

dioxide by more than any other country. In 2016, the

International Energy Agency credited the U.S. with the

largest reduction in carbon dioxide emissions of any

country, attributed the reduction to switching from

coal to natural gas, solar and wind, and noted that fuel

switching had allowed the U.S. to reduce emissions of

carbon dioxide to the lowest level since 1992.8

As a result of fuel switching, coal’s share of electricity generation declined from 52 percent in 1990 to

30 percent in 2017.9 If natural gas remains abundant

and inexpensive, the remaining 30 percent of electricity that is generated through use of coal will be

switched to natural gas or to carbon-free sources. That

additional fuel switching will result in additional large

reductions in carbon dioxide emissions.

Switching from coal to carbon-free sources like

wind and solar yields even larger reductions in carbon

dioxide emissions per unit of electricity generated. Between 2005 and 2017, U.S. emissions of carbon dioxide

declined by 1,494 metric tons as a result of fuel switching from coal to carbon-free sources of electricity.10

7

Energy Information Administration, U.S. Energy-Related

Carbon Dioxide Emissions, 2017, p. 9 (Sep. 25, 2018).

8

International Energy Agency, IEA Finds CO2 Emissions

Flat for Third Straight Year Even As Global Economy Grew in

2016 (Mar. 17, 2017).

9

Energy Information Administration, supra, note 7, at p. 11.

10

Id. at p. 9.

6

Switching from coal to carbon-free sources depends critically on the continued availability of abundant and inexpensive natural gas. Solar and wind are

intermittent sources of electricity. Since electricity cannot be stored economically, solar and wind are viable

sources of reliable electricity service only if they are

combined with a source that is readily available when

the sun does not shine and the wind is not within a

range that allows windmills to generate electricity.

Natural gas is the only source that can provide that

essential backup function in the U.S.11

II.

THE U.S. ROLE AS A NET EXPORTER OF

NATURAL GAS IMPROVES THE PROSPECTS FOR GLOBAL MITIGATION OF

CLIMATE CHANGE.

Coal-fired power generation is the largest source

of global energy-related carbon dioxide emissions. In

2018, it accounted for 30 percent of all energy-related

carbon dioxide emissions and 38 percent of emissions

from electricity generation globally.12 Unfortunately,

coal is still growing as a source of electricity. In 2018 it

was the largest source of growth in carbon dioxide

emissions in the world. Increases in use of coal to

11

Emily Hammond & Richard Pierce, The Clean Power Plan:

Testing the Limits of Administrative Law and the Electric Grid, 7

George Washington Journal of Energy and Environmental Law

1, 12-16 (Winter 2016).

12

International Energy Agency, Global Energy and CO2 Status Report p. 5 (Oct. 9, 2019).

7

generate electricity in China and India more than offset reductions in the U.S., Europe and Japan.13

The recent transition of the U.S. from its role as a

net importer of natural gas to its new role as a net exporter of natural gas is transforming the global market

for natural gas.14 That market is rapidly becoming

commoditized.15 The price of natural gas is increasingly lower than, and disconnected from, the price of

oil. The price of natural gas in each country increasingly is linked to the price of natural gas in other countries. Other countries that sell natural gas on the

global market have had to reduce the prices they

charge in response to the U.S. entry into the market.16

If and to the extent that the U.S. continues to expand its role as a global supplier of natural gas, the

price of natural gas in other countries will decline. As

a result, an increasingly large number of the new electricity generating units will be built to use natural gas

rather than coal, and an increasing proportion of existing generation will switch from coal to natural gas.

13

Id. at p. 5.

Richard Pierce, Natural Gas Fracking Addresses All of

Our Major Problems, 4 George Washington Journal of Energy and

Environmental Law 22, 24-25 (Summer 2013).

15

Yehya M. Nasser, Commoditization of Natural Gas, Challenges and Prospects, Society of Petroleum Engineers SPE175759-MS (2015).

16

Richard Pierce, supra, note 14, at 24-25.

14

8

III. PIPELINES ARE ESSENTIAL TO ALLOW

NATURAL GAS TO REACH MARKETS.

Natural gas can only be transported economically

over land by pipeline. The large reductions the U.S. has

achieved in its emissions of carbon dioxide took place

in a legal environment in which it was relatively easy

to obtain approval of a proposed natural gas pipeline

in a short period of time. Between 2000 and 2011,

14,600 miles of new natural gas pipelines were proposed, approved and built.17 The average time required

to obtain the certificate required to construct a pipeline

was 558 days.18

Over the last few years, however, that legal environment has begun to change. Many proposed gas

pipelines have been the subject of a variety of new legal challenges.19 The concerted efforts of some environmental advocacy organizations to block or delay

construction of gas pipelines seem to be related to the

“keep it in the ground” movement—groups of citizens

who believe that the best way to mitigate climate

change is to keep all fossil fuels in the ground. That

movement is understandable but misguided.

The keep it in the ground movement is understandable because emissions of carbon dioxide from

17

Klass & Meinhardt, supra, note 6, at 1007.

Government Accounting Office, Pipeline Permitting: Interstate and Intrastate Natural Gas Permitting Processes Include

Multiple Steps, and Time Frames Vary, p. 26 (Feb. 2013).

19

Richard Pierce, Pipeline Opposition Impedes Climate

Change Mitigation, The Regulatory Review (Sep. 13, 2018).

18

9

fossil fuels are the most important source of anthropogenic climate change. The movement is misguided,

however, for several reasons.

First, the use of natural gas to generate electricity

produces less than half the quantity of emissions of

carbon dioxide as does the use of coal. Coal remains a

major source of electricity in the U.S. today, so the U.S.

still has the opportunity to reduce its carbon dioxide

emissions significantly by switching from coal to gas.

Second, coal remains the largest source of electricity in the world. The U.S. change in its role from that

of a net importer of natural gas to a net exporter of

natural gas has reduced the global price of natural gas.

That price change has increased the probability that

generators of electricity in other nations will build new

generating plants to use natural gas rather than coal

and will switch some of their existing generators from

coal to natural gas. That will mitigate climate change

by reducing emissions of carbon dioxide. The U.S. can

continue to play that constructive role in global energy

markets only if it continues to have an abundant supply of inexpensive natural gas that is available for export.

Third, without major new technological improvements in large-scale storage of electricity, it is impossible to maintain a reliable supply of electricity without

access to an abundant supply of inexpensive natural

gas as a backup fuel for use when the sun does not

shine and wind velocity is outside the range that allows windmills to function.

10

Fourth, the alternative to providing the pipeline

capacity needed to transport natural gas from supply

areas to markets often is wasteful flaring of natural

gas. A high proportion of natural gas is produced in

conjunction with oil. Even if efforts to block oil pipelines are successful, oil can be transported to markets

by rail or truck. In many circumstances, the inability

of producers to transport natural gas to markets creates a powerful economic incentive to flare the natural

gas, i.e., to burn it in the air.20 Flaring both causes

waste and increases anthropogenic climate change.

------------------------------------------------------------------

CONCLUSION

In deciding this case, the Court should consider

the context in which the case arises. It is impossible to

take many of the actions that are critical to mitigation

of climate change unless the U.S. continues to have an

abundant supply of inexpensive natural gas. Any

change in the legal environment that has the effect of

blocking or delaying construction of new or expanded

20

The economic forces that often yield a decision to flare natural gas are described in detail in Richard Pierce, State Regulation of Natural Gas in a Federally-Deregulated Market: The

Tragedy of the Commons Revisited, 73 Cornell L. Rev. 15 (1987),

cited in Northwest Central Pipeline Corp. v. State Corporation

Commission of Kansas, 489 U.S. 493, 502 (1989). The circumstances that are leading to flaring today are described in Klass &

Meinhardt, supra, note 6, at 1009-1015.

11

natural gas pipelines will impair efforts to mitigate climate change.

Respectfully submitted,

RICHARD J. PIERCE, JR.

Counsel of Record

GEORGE WASHINGTON UNIVERSITY

LAW SCHOOL

2000 H Street NW

Washington, DC 20052

(703) 304-1623

rpierce@law.gwu.edu

November 5, 2019