Firefighters look at a collapsed section of Interstate 95 caused by a large vehicle fire … [+]
Shortly after a major bridge on Interstate 95 north of downtown Philadelphia collapsed on June 11, 2023, closing the entire freeway in the area due to a catastrophic truck fire on the street below, Pennsylvania Governor Josh Shapiro promised to quickly rebuild the structure with nonstop work. The stakes were high. I-95 is probably the most important highway in the entire federal interstate system. It connects Maine to Florida and all points in between and is essential to modern life and the economy almost everywhere it passes.
Governor Shapiro declined to provide an exact timeline for the base corridor to be up and running, but there was speculation that he hoped to have the bridge repaired within two months. Many saw this as wildly optimistic. Many speculated that the highway would be blocked for at least a year. It actually took 12 days.
Using a new and clever engineering process that involved filling the gap after the bridge’s collapse by piling tons of recycled glass aggregate into the underpass area, bringing what used to be the bridge to surface level, and then paving it over, Pennsylvania Department of Transportation workers accomplished the Herculean task in less than two weeks.
After the reopening, Governor Shapiro published a column in The Washington Post detailing some of the steps taken that allowed this fix to be done so quickly. Among them were the availability of infrastructure funding as a result of the recent Infrastructure Investment and Jobs Act and the fast-tracking of the permitting process, which was enabled by a disaster declaration the governor signed within 24 hours of the collapse. Indeed, Governor Shapiro wrote that “…some bureaucratic requirements have been completely dropped.”
In contrast to the remarkable speed of the I-95 rebuild, another major infrastructure project on the East Coast is still delayed. On July 11, the Fourth Circuit Court of Appeals 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 of gas per day roughly 1,000 miles from West Virginia to Tennessee and Virginia. The pipeline, which was approved by the Federal Energy Regulatory Commission (FERC) in 2017 and construction began in 2017, has been subject to numerous delays, including court-ordered stays due to challenges from environmental groups.
During recent congressional hearings on raising the federal debt ceiling, West Virginia Senator Joe Manchin managed to insert a provision into the legislation that transferred any jurisdiction over the project from the Fourth Circuit to the D.C. Circuit. Completely oblivious to this important fact, the Fourth Circuit issued retroactive stay orders on prior federal approvals, the first on reissued approvals from the Forest Service and the second from the Bureau of Land Management, each of which expressly authorized the construction of a 3.5-mile section of pipeline through the Jefferson National Forest.
Legally, the fight is a fascinating one and will likely have to be decided by the United States Supreme Court because it involves the constitutionality of Article I Congress and the Article II Executive Council seeking to control where federal courts do or do not have Article III jurisdiction. According to constitutional legal scholars, such cases are rare and the law is still quite unclear.
Outside of the legal context, however, this issue clearly shows the difficulty of building infrastructure in the current legal and political environment. Unlike the I-95 project, where many of the required permits were remarkably “waived,” including apparently any environmental concerns regarding the suitability of using this new “crushed glass” construction method, nearly all other major infrastructure projects have faced the same fate as the Mountain Valley Pipeline — that of delay after delay while seemingly endless court challenges slowly wind their way through the courts and/or various jurisdictions. Mountain Valley has another dimension that involves fossil fuels, which needless to say is a hot-button issue in these days of climate change, but the recent stays issued by the Fourth Circuit appear to be the ones likely to be issued for any pipeline construction, including renewable energy transmission lines. We’ve already seen how hard certain environmental groups will fight anything related to infrastructure, including those that enable renewable energy.
How then can we move to a more renewable energy environment if we can’t even agree to build the necessary infrastructure to achieve it?
It is not unusual for the United States Supreme Court and lower courts to try to decide an issue on narrow procedural grounds, avoiding the overall context, i.e., the “merits” of the dispute. In the Mountain Valley Pipeline case, however, the context stares the Fourth Circuit in the face, especially after a Democratic governor (Jn Pennsylvania) has just shown how quickly infrastructure projects can be implemented when undeniably needed, and as the world trembles and increasingly despairs under a series of “heat domes” that cause global temperatures to rarely, if ever, be seen before. Our good intentions will not enable renewable energy, only infrastructure traffic. If it can’t be built for decades, then our failure to see the forest for the trees may expose us to a fate we probably all want to avoid.