FacebookTwitterGoogle+RedditEmail

Transcanada’s Keystone XL Profits More Important than Environment

by STEVE HORN

In a major ruling that’s flown under the radar, the U.S. Court of Appeals for the Tenth Circuit – based in Denver, Colorado – decided not to grant the Sierra Club and Clean Energy Future Oklahoma a temporary injunction on the construction of the southern half of Transcanada’s Keystone XL tar sands export pipeline.

The Court’s decision hinged on an “injury” balancing test: Would Transcanada be hurt more financially from receiving an injunction? Had it lost, it would be stuck with one until Sierra Club, et al receive a U.S. District Court decision on the legality of the U.S. Army Corps of Engineers’ decision to grant Transcanada a Nationwide Permit 12 (NWP 12) for construction of what’s now called the Gulf Coast Pipeline in February 2012.

Or would ecosystems suffer even greater and potentially incalculable damage from the 485-mile, 700,000 barrels per day pipeline crossing 2,227 streams?

In a 2-1 decision, the Court sided with Transcanada, and by extension, the U.S. Army Corps of Engineers. The Court ruled, “the threatened environmental injuries were outweighed by the financial harm that the injunction would cause Transcanada.”

Commenting on the case brought by Sierra Club, et al, Judge Jerome A. Holmes and Judge Paul J. Kelly, Jr. – appointees of President George W. Bushand President George H.W. Bush, respectively – shot down the arguments sharply.

Holmes and Kelly ruled that Sierra Club, et al failed to show how the pipeline will have a significant environmental impact despite the fact it’s been deemed a “fuse to the biggest carbon bomb on the planet” by retired NASA climate scientist James Hansen.

Construction of Keystone XL’s southern half – subject of significant grassroots activism by the Tar Sands Blockade and others – is now nearly complete. Tar sands dilbit is slated to begin to flow through it in early 2014.

NWP 12: “New Normal” for Tar Sands Pipeline Approval

After protestors succeeded initially in delaying Keystone XL, Big Oil has chosen a “new normal” stealth approval method: the non-transparent NWP 12.

This avoids the more strenuous National Environmental Protection Act permitting process overseen by the Environmental Protection Agency (EPA), which requires public hearings and public comments for major federal pipeline projects. NEPA compels the EPA to take comments into account in responsethroughout the Environmental Impact Statement phase, allowing robust public participation in the process.

Sierra Club Staff Attorney Doug Hayes explained in an interview withDeSmogBlog that NWP 12 is for utility projects with up to a half an acre of stream or wetland impacts, and has never been used for tar sands pipelines before Keystone XL’s southern half.

The southern half of the pipeline was approved via Executive Order by President Barack Obama in March 2012, directly after Obama gave a speech in front of a Cushing, OK pipeyard.

“The Corps is abusing the nationwide permit program. Nationwide permits were intended to permit categories of projects with truly minimal impacts, not tar sands oil pipelines crossing several states,” said Hayes.

Utilizing tricky legal loopholes, Transcanada used NWP 12 to push through Keystone XL’s southern half in February 2012, calling each half acre segment of Keystone XL’s southern half a “single and complete project.” The Army Corps of Engineers agreed despite the fact that Transcanada refers to the pipeline at-large as the “Gulf Coast Pipeline project.”

“What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid environmental review,” Hayes explained. “In this case, there were 2,227 crossings of federal waterways, so the Corps has treated the Gulf Coast Pipeline as 2,227 ‘single and complete projects,’ each of which qualifies under NWP 12.”

Why, I asked Hayes?

“The Corps artificially treats these massive pipelines as thousands of individual projects so as to qualify under NWP 12 and avoid NEPA compliance.”

NWP 12 has also been utilized by Enbridge for the Flanagan South Pipeline, a 600-mile, 600,000 barrels per day pipeline set to shuttle tar sands crude from Flanagan, IL to Cushing, OK, crossing over 2,000 streams. That pipeline is scheduled to begin operations in mid-2014, demonstrating how NWP 12 is the “new normal” way to fast-track domestic tar sands pipelines.

Dissent: Laws Violated, Economic Harm Transcanada’s Fault

Perhaps the biggest irony of the Appeals Court decision is that Judges Holmes and Kelly barely grappled with the central issue of the legal challenge to begin with: using NWP 12 rather than going through the NEPA process.

“The majority opinion avoided addressing the legal questions that are central to this lawsuit – whether the Corps violated the law in permitting this pipeline – and instead it was based on how much money a delay in construction would cost TransCanada,” said Hayes.

Though Judges Holmes and Kelly stayed mum about these issues, dissenting U.S. District Court for the District of Colorado Judge William Martínez – an Obama appointee – did not, pulling no punches in doing so.

“Given the totality of the circumstances…I believe the…Gulf Coast Pipeline required a comprehensive NEPA analysis,” Martínez wrote.

“There are also no specific findings in support of the Corps’ conclusion that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact. The failure to consider the cumulative effects of all of the water crossings involved in the Gulf Coast Pipeline violates the terms of NWP 12, and, therefore, the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline violated the law.”

Though Judges Holmes and Kelly grappled with the issue of water crossings – belittling the amount of water Keystone XL’s southern half would cross over – Martínez said it’s about much more than just water.

There is “real and signifcant harm caused by the actual construction of the pipeline, including the clearing of trees and vegetation, removing topsoil, filling wetlands, building access roads, and clearing an eighty-five foot construction right-of-way for the length of the pipeline,” he stated.

Hayes agreed with this assessment, pointing to examples of things the Judges simply ignored in their assessment.

“[T]he court’s balancing test ignored the host of environmental impacts associated with this pipeline, including the risks of tar sands oil spills,” said Hayes.

“Remember that the 2010 tar sands pipeline spill in Michigan is still being cleaned up, and so far has cost over a billion dollars. It’s a bit of a Catch-22 to say that this is all just about a few acres of wetlands loss, when the whole point of this lawsuit is that the Corps avoided analyzing any of the pipeline’s environmental impacts as required by NEPA.”

Lastly, Martínez put the onus on Transcanada for its economic decision-making.

“Transcanada chose to incur its economic harm by entering into contracts for services before the Gulf Coast Pipeline was approved, even in light of the controversial nature of the Pipeline,” said Martínez (emphasis his).

U.S. District Court Decision Forthcoming, Activism Persists 

Sierra Club, et al now await a summary judgment from the U.S. District Court for the District of Colorado on whether Keystone XL failed the dictates of NEPA. It’s a key decision, Hayes says, because “a ruling in our favor could prevent the Corps from doing this in the future.”

While they await this lower court judgment, activists continue efforts to fend off these pipeline projects.

“This decision yet again demonstrates why direct action is necessary. The permitting process for Keystone XL’s southern leg was illegal, yet regulators, inspectors, Obama, and the courts are failing to do what is necessary to protect the people and ecosystems threatened by this toxic pipeline,” said Ron Seifert, a Tar Sands Blockade spokesman.

“If all the branches of government are so helplessly captured by industry that they will do nothing to stave off climate change, then the people must rise up and take the defense of the environment into their own hands.”

Steve Horn is a Madison, WI-based freelance investigative journalist and Research Fellow at DeSmogBlog, where this piece first appeared.

Steve Horn is a Madison, WI-based freelance investigative journalist and Research Fellow at DeSmogBlog, where this piece first appeared.

More articles by:
July 26, 2016
Victor Grossman
Horror and Sorrow in Germany
Nyla Ali Khan
Regionalism, Ethnicity, and Trifurcation: All in the Name of National Integration
Andrew Feinberg
The Good TPP
400 US Academics
Letter to US Government Officials Concerning Recent Events in Turkey
July 25, 2016
Sharmini Peries - Michael Hudson
As the Election Turns: Trump the Anti-Neocon, Hillary the New Darling of the Neocons
Ted Rall
Hillary’s Strategy: Snub Liberal Democrats, Move Right to Nab Anti-Trump Republicans
William K. Black
Doubling Down on Wall Street: Hillary and Tim Kaine
Russell Mokhiber
Bernie Delegates Take on Bernie Sanders
Quincy Saul
Resurgent Mexico
Andy Thayer
Letter to a Bernie Activist
Patrick Cockburn
Erdogan is Strengthened by the Failed Coup, But Turkey is the Loser
Robert Fisk
The Hypocrisies of Terror Talk
Lee Hall
Purloined Platitudes and Bipartisan Bunk: An Adjunct’s View
Binoy Kampmark
The Futility of Collective Punishment: Russia, Doping and WADA
Nozomi Hayase
Cryptography as Democratic Weapon Against Demagoguery
Cesar Chelala
The Real Donald Trump
Julian Vigo
The UK’s Propaganda Machinery and State Surveillance of Muslim Children
Denis Conroy
Australia: Election Time Blues for Clones
Marjorie Cohn
Killing With Robots Increases Militarization of Police
David Swanson
RNC War Party, DNC War Makers
Eugene Schulman
The US Role in the Israeli-Palestine Conflict
Nauman Sadiq
Imran Khan’s Faustian Bargain
Peter Breschard
Kaine the Weepy Executioner
Weekend Edition
July 22, 2016
Friday - Sunday
Jeffrey St. Clair
Good as Goldman: Hillary and Wall Street
Joseph E. Lowndes
From Silent Majority to White-Hot Rage: Observations from Cleveland
Paul Street
Political Correctness: Handle with Care
Richard Moser
Actions Express Priorities: 40 Years of Failed Lesser Evil Voting
Eric Draitser
Hillary and Tim Kaine: a Match Made on Wall Street
Conn Hallinan
The Big Boom: Nukes And NATO
Ron Jacobs
Exacerbate the Split in the Ruling Class
Jill Stein
After US Airstrikes Kill 73 in Syria, It’s Time to End Military Assaults that Breed Terrorism
Jack Rasmus
Trump, Trade and Working Class Discontent
John Feffer
Could a Military Coup Happen Here?
Jeffrey St. Clair
Late Night, Wine-Soaked Thoughts on Trump’s Jeremiad
Andrew Levine
Vice Presidents: What Are They Good For?
Michael Lukas
Law, Order, and the Disciplining of Black Bodies at the Republican National Convention
David Swanson
Top 10 Reasons Why It’s Just Fine for U.S. to Blow Up Children
Victor Grossman
Horror News, This Time From Munich
Margaret Kimberley
Gavin Long’s Last Words
Mark Weisbrot
Confidence and the Degradation of Brazil
Brian Cloughley
Boris Johnson: Britain’s Lying Buffoon
Lawrence Reichard
A Global Crossroad
Kevin Schwartz
Beyond 28 Pages: Saudi Arabia and the West
Charles Pierson
The Courage of Kalyn Chapman James
Michael Brenner
Terrorism Redux
FacebookTwitterGoogle+RedditEmail