Meet the judge at the heart of the West’s top energy battles, E&E News

Meet the judge at the heart of the West’s top energy battles

Niina H. Farah, E&E News reporter • Published: Friday, May 29, 2020

Photo collage of Judge Brian Morris. Credits: Claudine Hellmuth/E&E News(illustration); US Government/Wikipedia(Morris); jwigley/Pixabay (pumpjack photo);pxfuel(pumpjacks); Energy Transfer LP(pipes); SnazzyMaps
U.S. District Court for the District of Montana Chief Judge Brian Morris has issued a flurry of rulings in recent weeks with regional and national impacts for the energy sector, all in the midst of a global pandemic. Claudine Hellmuth/E&E News (illustration); US Government/Wikipedia (Morris); jwigley/Pixabay (pumpjack photo); pxfuel (pumpjacks); Energy Transfer LP (pipes); SnazzyMaps

Brian Morris has had a very busy few weeks.

The chief judge for the U.S. District Court for the District of Montana, one of three active jurists on the bench, has stalled a national permitting program, upheld federal rules on pipeline inspections and tossed out hundreds of oil and gas leases — all in the midst of the coronavirus pandemic.

Critics warn that Morris’ rulings threaten to cause more economic harm to the oil and gas industry, which has already been battered by the public health crisis. Environmental groups say the judge’s decisions are instead a reflection of the Trump administration’s poorly executed push for energy dominance.

“My read of him is that he’s a stickler for the agencies following proper procedures in environmental cases,” said Larry Liebesman, a senior adviser at the consulting firm Dawson & Associates.

Soon after graduating from Stanford University with bachelor’s, master’s and law degrees, Morris clerked for former Supreme Court Chief Justice William Rehnquist, a conservative. Morris, a Treasure State native, later returned to his home state to work in private practice and — eventually — serve as state solicitor and a Montana Supreme Court justice.

Former President Obama appointed Morris, 56, to the Montana district court in 2013, and he became chief judge in March.

“He’s a very careful, thoughtful judge,” said Liebesman, a former senior trial attorney in the Justice Department’s environment division. “He’s not going to simply rubber-stamp or immediately return an agency decision because of some philosophical bent. I certainly don’t get that impression whatsoever.”

Morris made waves last month when he issued a sweeping order blocking the use of the Army Corps of Engineers’ Nationwide Permit 12.

The unexpected decision, which Morris later narrowed to block the permit only for new oil and gas pipelines, kicked off a steady stream of rulings in the following weeks.

The judge has recently tossed out oil and gas leases issued by the Bureau of Land Management on the grounds that the agency ran afoul of environmental law and greater sage grouse protections. He has also preserved federal pipeline safety inspection standards and rejected an effort to reinstate the Obama administration’s freeze on coal leasing on public lands.

Morris’ rulings have previously drawn attention in Washington. President Trump slammed the judge’s 2018 decision halting construction on the Keystone XL pipeline and pledged to install more conservative judges on the 9th U.S. Circuit Court of Appeals, which reviews cases from Morris’ court (Greenwire, Nov. 9, 2018).

Environmental groups have praised Morris’ orders and have found hope even in decisions that favored the federal government.

Morris is an “extremely fair judge” who peppers both sides with questions in oral arguments, said Rebecca Fischer, a climate and energy program attorney at WildEarth Guardians.

She summed up Morris’ recent decisions in favor of environmental groups as “a problem of the Trump administration’s own making.”

“Federal agencies are under extreme pressure to greenlight any fossil fuel projects and policies without doing their homework on whether these projects comply with federal law,” said Fischer.

‘Activist judge’

That pressure includes a push by the Trump administration to complete the controversial Keystone XL oil pipeline.

Litigation over the project, which Obama previously canceled, put a spotlight on the Army Corps’ nationwide permitting program. The government has for decades used the program to streamline authorizations of dredge-and-fill activities for utility lines, but environmentalists have criticized the program’s now-widespread use for oil and gas pipelines.

Green groups last year challenged the use of the permitting program to approve water crossings along the route of Keystone XL, a 1,200-mile project designed to connect Canadian oil sands to refineries and ports along the Gulf of Mexico.

Morris’ decision to halt the permitting program nationwide played into an ongoing debate on the “hot topic” in legal circles about whether district judges should wield the power to block federal actions across the country, said Liebesman.

“There are a lot of conservative judges, including some comments from Justice [Neil] Gorsuch on the Supreme Court that raised concerns that granting those kinds of nationwide injunctions, even for a rule of national scope, is simply too far,” he said.

In the Army Corps case, Morris focused his decision on the agency’s failure to conduct a broad analysis of the impact permitted projects would have on vulnerable plants and animals. He found that the only way to provide effective relief was to block the program across the country, Liebesman said.

Even though Morris later narrowed his order, the decision continues to have a far-reaching impact on projects, including in areas where no endangered species have been identified, said Brandon Tuck, counsel at the firm Vinson & Elkins LLP.

“So many of the projects that use Nationwide 12 … are not 500- or 700-mile-long Keystone-like pipeline projects,” he said. “The court’s order enjoins lots of very small, very routine, noncontroversial projects for the sake of the long, 500-mile oil and gas pipelines.”

Tuck noted that a number of his firm’s clients have been affected by the Montana district court’s decision. He is not directly involved in litigation over the nationwide permitting order.

Western Energy Alliance President Kathleen Sgamma has called Morris an “activist judge” who fails to appreciate the effects of his decisions on companies forced to stall projects.

“His bias against oil and natural gas was such that he wanted to stop the pipeline, so he found a way to deny that nationwide permit for the pipeline,” she said. “Well, it seems like he didn’t even think about the fact the permit is used nationwide for all kinds of different infrastructure projects.”

Morris appeared to have a “moment of clarity” about the effects of the ruling when he decided to narrow his order, Sgamma added. But unless the 9th Circuit overturns the Montana district court’s decision, the ruling will remain in effect until the Army Corps completes the necessary consultation.

The 9th Circuit yesterday declined to immediately lift the permitting suspension.

Others were quick to defend Morris’ decisions.

“I dislike the characterization of any judge who issues a decision adverse to industry as being activist somehow,” said Sarah Stellberg, a staff attorney at Advocates for the West.

“It’s just judges’ roles of calling balls and strikes, and sometimes you win and sometimes you don’t,” she continued, “and we view the decisions here as right legally based on the facts of the cases.”

Rethinking NEPA

Industry groups have also zeroed in on Morris’ recent decisions to scrap oil and gas leases in Western states in a pair of cases that centered on BLM’s compliance with the National Environmental Policy Act and greater sage grouse protections.

Energy industry interests warn that the Montana district court went too far in invalidating the leases, rather than sending them back to BLM for reconsideration. Environmental groups have lauded the shift back toward forcing the agency to begin NEPA analyses from scratch after violations.

Morris “threw away decades of precedent” with his leasing decisions, said Sgamma. She noted that the normal remedy for failing to draft an adequate analysis under the procedural law is to require “more NEPA.”

“He’s willing to throw out the actual letter of the law when it comes to NEPA to get his desired outcome of canceling leases,” Sgamma said of Morris.

The judge’s finding that site-specific NEPA analysis is required at the leasing stage is “meaningful,” said Stellberg. Once a lease is voided, BLM has to start from square one before attempting to offer the land for development again.

“The problem with that is the agency goes back and sort of cleans up the NEPA analysis without actually meaningfully considering again whether the parcels should be issued,” Stellberg said.

“So in our view, vacatur is an incredibly important remedy in all NEPA cases, and especially in oil and gas cases under this administration, where they’ve shown this bias toward energy development to begin with,” she said.

Far from departing from precedent on NEPA cases, Morris’ decision on the Montana leases actually reaffirmed classic NEPA case law, said Dawson & Associates’ Liebesman.

He said Congress passed NEPA to prevent federal agencies from irretrievably committing resources without doing an in-depth analysis of facts and alternatives.

“NEPA is a procedural statute, but that doesn’t mean that the agency can just do a perfunctory analysis, and that’s the criticism in this BLM case,” Liebesman said. “I don’t think his ruling is out of character to what the case law has been over these many years.”

While Liebesman suggested environmental groups would be using the ruling to push for more cumulative climate analysis, Vinson & Elkins attorney Corinne Snow said it remains to be seen whether courts really are moving more toward scrapping leases.

The same lawyers who prevailed in the Montana district court case have made similar arguments before other benches, with mixed results, Snow said. The picture will become clearer as cases move up to federal appeals courts that set precedent for district judges.

“I think it’s an unsettled area of law,” Snow said.

Snow, a former DOJ attorney, noted that her comments did not reflect any confidential or nonpublic information related to the department’s cases. She declined to comment on aspects of cases where she had recusal obligations.

Federal agencies face challenges in their efforts to “get it right” on NEPA analysis, Snow added, given that it is a statute with “very old” regulations.

Many NEPA decisions from courts across the country are fact-specific, she said, which creates a challenge both for judges and for federal agencies trying to comply with the law.

“There is always someone who can find some flaw with what you did,” Snow said, “and then the judges are put in the position of having to evaluate should the agencies have done more, and if so, what’s the remedy?”

Enviros find silver linings in losses

Morris doesn’t always rule in favor of environmental interests.

Yet green groups challenging the federal government have found cause for optimism in even those cases where the judge has sided with agencies.

WildEarth Guardians’ Fischer has recently been on the losing end of a Morris ruling. On the same day the judge blocked the Army Corps permitting program, he found that the Pipeline and Hazardous Materials Safety Administration hadn’t failed to act on a statutory requirement to annually inspect all oil and gas pipelines on federal land.

Morris said he came to the decision reluctantly, noting that the agency’s regulations didn’t appear to fulfill inspection requirements under the Mineral Leasing Act.

But, he said, the court could not address “whether and how PHMSA is complying with its statutory duties.”

WildEarth Guardians is still considering whether it will attempt a new challenge.

Morris last week also rejected a bid by tribes, environmental groups and states to undo the Trump administration’s decision to end a temporary coal leasing moratorium on public lands.

The judge found that BLM had complied with his earlier instructions to conduct a NEPA analysis of its decision to reverse course on the Obama-era ban and did not conclude that the agency should have undertaken a more robust environmental impact statement.

As with the pipeline safety case, Morris left open the possibility for further litigation, suggesting challengers could go back and file a separate lawsuit addressing the content of BLM’s environmental assessment.

The PHMSA and coal leasing decisions show Morris is willing to uphold an agency record “done the right way,” Liebesman said.

“It seems to be consistent across the board that he is going to look very carefully towards the government’s decisions relating to these energy projects, whether they are meeting the standards of these various environmental laws,” he said.

“I have been in front of a good number of federal judges over the years,” he said. “Some are certainly better than others, and some, no matter how much you argue, are not going to go your way.”

Morris, Liebesman said, is different: “I don’t think that you can pigeonhole him.”