January 8, 2014

How the Right Uses Environmental Law to Kill American Jobs

By Lewis Milford

“Conservative groups use environmental litigation to kill American jobs. ”

No, that was not the title of the recent New York Times article about the Cape Wind offshore wind project. But it should have been.

The article detailed the unfortunate story of how a local contractor, Mass Tank, lost out on a big welding job for the Cape Wind project to European offshore contractors.

Why? Because the European bids were cheaper.

And why is that? Because the U.S. lacks a robust and mature offshore wind industry. It has not had the opportunity to build up to scale to compete against the Europeans who have been building projects for two decades.

But why is that? That is where the litigation against the Cape Wind project should have a played a bigger part in the story.

For the last decade, Bill Koch, the infamous billionaire, has funded litigation to stop the Cape Wind project, because he doesn’t want to see it from his Cape Cod mansion. Whether he also wants to kill off renewable power because his wealth comes from fossil fuels is almost beside the point.

And what kind of litigation strategies is the conservative Mr. Koch pursuing? Just the kind of legal strategies that the conservative right complains about when environmentalists use them to protect the environment.

In Koch’s latest failed effort to use environmental law to block the project, the federal appeals court in Washington rejected his attempts to sue the FAA, which concluded the project would not interfere with airport radar. The case relied in part on using NEPA, the nation’s major environmental review law, to try to overturn the federal approval.

There is a connection here between the loss of American jobs and the conservatives’ use of environmental litigation to serve clearly private, not public, interests.

If the Cape Wind offshore wind project had not been held up for a decade by fruitless litigation, more companies like Mass Tank would have had a chance to gain competence, reduce costs, and compete against their European counterparts for Cape Wind and other offshore wind projects. There might be an emerging offshore wind industry with competitive U.S. suppliers winning bids rather than losing them.

The endless litigation is not the only reason for that shortcoming, but it has to take some of the blame.

So the next time someone on the right falsely decries environmentalists for killing American jobs through lawsuits, ask them to explain why their friends in Massachusetts are doing the same thing.

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