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Confirmed Judges, Confirmed Fears: Trump Circuit Judge Stops Citizens' Groups from Raising Objections to Natural Gas Pipeline

Trump-appointed judge Joan Larsen
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“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

Trump judge Joan Larsen of the Sixth Circuit was the author and deciding vote in a 2-1 decision in February 2019 that dismissed, for lack of standing, a petition to review air pollution permits issued to a company that wanted to build a natural gas pipeline in Ohio and Michigan. The dissent strongly disagreed, pointing out that Larsen’s opinion was “inconsistent with the review procedure Congress created” and with “public safety.”

Under the federal Natural Gas Act, when a gas company wants to build a pipeline, it must obtain pollution control permits from state authorities; if there is an objection to those permits, they must be challenged in the appropriate federal court of appeals. NEXUS Gas Transmission obtained air pollution permits for its proposed gas pipeline in Ohio and Michigan. Three citizens’ groups strongly objected, raising concerns about air pollution and other environmental problems, and filed a petition for review directly with the Sixth Circuit.

In Protecting Air for Waterville v. Ohio Environmental Protection Agency, however, Judge Joan Larsen wrote a 2-1 decision dismissing the petition for lack of standing, without even considering the objections on the merits. Her opinion stated that the groups had failed to specifically mention standing in their opening brief, and that overall there was “not enough to show a concrete injury” from the pipeline.

Judge Gilbert Merritt strongly dissented. He pointed out that Congress had specified that review in courts of appeals was the only “forum for review” of objections like those of the citizens’ groups, and that dismissal of a review petition based on complex standing doctrines was not a “reasonable construction” of the statute. To the contrary, he explained, the “very fact that this is the only review process” for “a very dangerous activity” suggested that the groups had standing.

In addition, Judge Merritt demonstrated that the groups’ arguments and the administrative record below were “replete” with clearly adequate claims of injury based on prior case law. These included allegations concerning the aggravation of medical conditions like asthma from increased air emissions, other air pollution harm, and the risk of an “explosion or incendiary accident.” He concluded that it was “error” for Larsen to claim that there was no evidence that the groups or their members will be “harmed by the emissions” and the pipeline. But as a result of Larsen’s opinion, the serious allegations of environmental harm from the pipeline raised by the groups will not be considered.