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Court: Key Environmental Law Doesn’t Apply to Part of Enbridge Keystone XL “Clone”

6:06 pm in Uncategorized by Steve Horn

A judge's gavel

A judge just ruled federal law doesn’t apply to this pipeline firm.

U.S. District Court for the District of Columbia has ruled that Enbridge’s 600-mile-long Flanagan South Pipeline, a Keystone XL “clone,” is legally cleared to proceed opening for business in October.

Approved by the U.S. Army Corps of Engineers via a controversial regulatory mechanism called Nationwide Permit 12 (NWP 12), Judge Kentanji Brown Jackson, an Obama-appointed judge, ruled NWP 12 was not a federal government “action.” Thus, Brown posited that Enbridge did not need to use the National Environmental Policy Act (NEPA) regulatory process and NWP12 was up to snuff.

The case pitted the Sierra Club and the National Wildlife Federation (NWF) against the Army Corps of Engineers and Enbridge and has lasted for just over a year, with the initial complaint filed on August 13, 2013 (Case #: 1:13-cv-01239-KBJ).

Sierra Club and NWF submitted the recent precedent-setting Delaware Riverkeeper v. Federal Energy Regulatory Commission (FERC) case as supplemental authority for Sierra Club v. U.S. Army Corps of Engineers on the day that decision was handed down.

But Jackson brushed it aside, saying it doesn’t apply to Flanagan South, despite the fact that the Delaware Riverkeeper v. FERC decision said that a continuous pipeline project cannot be segmented into multiple parts to avoid a comprehensive NEPA review.

Although Enbridge will operate this project as a single pipeline, Flanagan South was broken up into thousands of “single and complete” projects by the Army Corps of Engineers. This helped Enbridge skirt the requirement of a more comprehensive and public-facing NEPA review, which involves public hearings and a public comment period.

“Here, not only was there no NEPA analysis of this massive project, there was never any public notice or opportunity for involvement before it was constructed across four states,” Sierra Club attorney for the case, Doug Hayes, told DeSmogBlog. “The entire thing was permitted behind closed doors.”

For all intents and purposes, then, Flanagan South is a fait accompli and tar sands diluted bitumen (“dilbit”) will begin pumping through it as summer turns to fall.

Private Company, Hands-Off Approach

At 48-pages, Jackson’s ruling centers around a key central argument: Enbridge is a private company and Congress has never given executive agencies the green light to regulate domestic oil pipelines.

“Congress has not authorized the federal government to oversee the construction of private domestic oil pipelines; consequently, Enbridge has undertaken to build the planned [Flanagan South] Pipeline largely on its own, primarily by securing easements from the landowners who own the property over which the pipeline will operate,” wrote Jackson.

Judge Jackson said that a laissez-faire governmental approach to authorizing pipelines is appropriate, according to her reading of the law on the books.

“[T]he gist of the Court’s conclusion is that Plaintiffs are wrong to insist that any federal agency had an obligation under NEPA or any other statute to conduct an environmental review of the impact of the entire [Flanagan South] Pipeline before Enbridge broke ground on the project,” she opined.

“Connected Action” Doctrine

Another key legal precedent discussed in Jackson’s ruling was Delaware Riverkeeper v. FERC, covered by DeSmogBlog in June.

She weighed the merits of the “connected action” doctrine as applied to a lack ofNEPA review for Flanagan South, writing it does not apply to the pipeline because the Army Corps of Engineers has no obligation to do a NEPA review in this case.

“In [Delaware Riverkeeper v. FERC] the connected actions rule applied because the courts were required to assess whether the agencies had improperly limited the scope of the review of actions within their own jurisdiction—a determination that is fundamentally different from the question Plaintiffs present here, i.e., whether [NEPA] must be expanded to include an environmental review of actions completely outside the agencies’ purview,” Jackson wrote.

Army Corps Abusing NWP 12?

Hayes told DeSmogBlog back in November that the Army Corps of Engineers’ intricate involvement in permitting massive tar sands pipeline projects is at the root of the problem.

“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. “What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid NEPA compliance.”

Congress Passed NEPA in 1969

The greatest irony of Jackson’s decision is that Congress passed NEPA — known by legal scholars as the “environmental Magna Carta“ — in 1969, and it was signed into law by President Richard Nixon in 1970.

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Investor Call: Enbridge’s Keystone XL Clone Opens in October, Rail Facility to Follow

6:06 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

In a recent quarter two call for investorsEnbridge Inc executives said the company’s “Keystone XL” clone — the combination of the Flanagan South and Seaway Twin pipelines — will open for business by October.

As previously reported by DeSmogBlog, Enbridge has committed a “silent coup” of sorts, ushering in its own Alberta to Port Arthur, Texas pipeline system “clone” of TransCanada‘s Keystone XL tar sands pipeline. Unlike Keystone XL‘s northern leg, however, Enbridge has done so with little debate.

With the combination of the Alberta Clipper (now called Line 67, currently up for expansion), Flanagan South and Seaway Twin pipelines, Enbridge will soon do what TransCanada has done via its Keystone Pipeline System.

That is, bring Alberta’s tar sands to Gulf of Mexico refineries and send it off to the global export market.

According to Guy Jarvis, president of liquids pipelines for Enbridge, even though the Cushing, Oklahoma to Port Arthur, Texas Seaway Twin is technically operational, it will not become functional until Flanagan South opens in October.

“The base plan had been, and still is, to do the line fill of the Seaway Twin from Flanagan South. So we don’t expect to see too much off the Seaway Twin until Flanagan South does go into service,” Jarvis said on the investor call.

“It does have the capability to be line filled at Cushing if the barrels are available and the market signals would suggest that you would want to do that. But at this point in time, we think it will be the base plan that it is filled on from Flanagan South.”

Beyond piping diluted bitumen (“dilbit”) to market, Enbridge also has plans to market dilbit via rail in a big way.

All Aboard Enbridge’s Tar Sands-By-Rail

Jarvis unpacked his company’s plans to help move tar sands by rail during the call, as well.

“In terms of the rail facility, one of the things we’re looking at is – and the rail facility is really in relation to the situation in western Canada where there is growing crude oil volumes and not enough pipeline capacity to get it out of Alberta for a two or three year period,” he said.

“So, one of the things we’re looking at doing is constructing a rail unloading facility that would allow western Canadian crudes to go by rail to Flanagan, be offloaded, and then flow down the Flanagan South pipeline further into Seaway and to the Gulf.”

The Wall Street Journal explained that Enbridge’s rail loading facility can handle 140,000 barrels of heavy oil per day and will be open for business in early 2016.

“Competitive Advantage”

According to lobbying disclosure forms reviewed by DeSmogBlog, Enbridge spent $230,000 on lobbying the federal government in the first half of 2014. For a company that earned over $410 million (US dollars) in 2013, the amount equals a mere drop in the bucket.

But, the company acknowledged in its earnings call that its quiet and cheap — yet effective — efforts have paid huge dividends.

“So, we think that, while we’re already very competitive into the markets that we serve directly with pipelines, that competitive advantage into those markets is likely only to get stronger,” said Jarvis.

Enbridge’s “competitive advantage,” however, comes with a cost for everyone else: lighting the “fuse” to a “carbon bomb” for one of the filthiest, climate destroying fossil fuels on the planet in Alberta.

Dairyland to Petrostate: Wisconsin Oil-By-Rail Routes Published for First Time

1:51 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog 

A BNSF train engine heading north

BNSF and other rail companies are carrying dangerous oil tankers through Wisconsin.

DeSmogBlog is publishing the first documents ever obtained from the Wisconsin government revealing routes for oil-by-rail trains in the state carrying oil obtained via hydraulic fracturing (“fracking”) in the Bakken Shale basin.

The information was initially submitted to the U.S. Department of Transportation (DOT) under the auspices of a May 7 Emergency Order, which both the federal government and the rail industry initially argued should only be released to those with a “need to know” and not the public at-large.

The Wisconsin documents show the three companies that send Bakken crude trains through the state — Burlington Northern Santa Fe (BNSF), Union Pacific and Canadian Pacific — all initially argued routes are “sensitive security information” only to be seen by those with a “need to know.”

As covered in a previous DeSmogBlog article revealing the routes of oil trains traveling through North Dakota for the first time, the rail industry used this same line of legal argument there and beyond.

Wisconsin Emergency Management did not buy the argument, though, and released the documents to DeSmogBlog through the state’s Public Records Act.

BNSF Hugs the Mississippi

As with North Dakota, BNSF is the chief mover of oil-by-rail in Wisconsin.

BNSF is owned by Warren Buffett, one of the richest men on the planet and a major campaign contributor to President Barack Obama and expected major donor for Hillary Clinton’s 2016 presidential bid.

According to the records it submitted to Wisconsin Emergency Management, BNSF moves the majority of its crude-by-rail trains along the state’s western corridor, which hugs the Mississippi River.

For the week of June 5 through June 11, records show BNSF sent 39 oil-by-rail trains through Buffalo County, La Crosse County, Pepin County, Pierce County and Trempealeau County. All of these counties border the Mississippi.

As covered here on DeSmogBlog in January, the BNSF-owned Bakken oil train that exploded in Casselton, North Dakota on December 30, 2013 was headed to a Mississippi River terminal in Missouri owned by Marquis Energy.

Canadian Pacific Hugs Lake Michigan

While BNSF dominates Wisconsin’s Mississippi River corridor, Canadian Pacific does the same — albeit to a much lesser extent — along another major body of water: Lake Michigan.

According to the data submitted by the company, Canadian Pacific ships three to five train-loads of Bakken oil per week through Milwaukee County, Racine County and Kenosha County. Canadian Pacific slices through the heart of the state in a west-to-east transit route to reach Milwaukee County.

Milwaukee, Racine and Kenosha all border Lake Michigan. And once it crosses into northeastern Illinois, the rail line sits in close proximity to Lake Michgan, particularly in Waukegan (a train line traversed many times by this writer, a Kenosha native).

Canadian Pacific owns a major rail transload facility — Great Lakes Reloading — located on the southeast side of Chicago. It sits close to both Lake Michigan and the Calumet River.

Great Lakes Reloading serves as a key thoroughfare for many of the company’s freight rail transportation routes, including for crude-by-rail.

Union Pacific: Didn’t Meet Threshold

Industry giant Union Pacific did not meet the oil-by-rail carriage threshold that requires companies to submit routes to State Emergency Response Commissions (SERCs), one of which is Wisconsin Emergency Management.

That threshold, as explained by Union Pacific in its letter to Wisconsin Emergency Management, is one million gallons of Bakken crude per week.

Union Pacific is perhaps best known to many in southeast Wisconsin and northeast Illinois for its Metra public transit line running from Kenosha to Chicago (and vice versa) and from Chicago to many Chicago-area suburbs (and vice versa).

From America’s Dairyland to Petrostate?

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BP’s Lake Michigan Spill: Did Tar Sands Spill into the Great Lake?

11:16 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog 

Is it conventional crude or tar sands? That is the question. And it’s one with high stakes, to boot.

The BP Whiting refinery in Indiana spilled between 470 and 1228 gallons of oil (or is it tar sands?) into Lake Michigan on March 24 and four days later no one really knows for sure what type of crude it was. Most signs, however, point to tar sands.

The low-hanging fruit: the refinery was recently retooled as part of its “modernization project,” which will “provide Whiting with the capability of processing up to about 85% heavy crude, versus about 20% today.”

As Natural Resources Defense Council (NRDC) Midwest Program Director Henry Henderson explained in a 2010 article, “heavy crude [is] code for tar sands.”

Albeit, “heavy crude” is produced in places other than Alberta’s tar sands, with Venezuela serving as the world’s other tar sands-producing epicenter. So, in theory, if it’s heavy crude that spilled into Lake Michigan, it could be from Venezuela.

But in practice, the facts on the ground tell a different story. As a January 2014 article in Bloomberg outlined, the combination of the U.S. hydraulic fracturing (“fracking”) boom and the Canadian tar sands boom has brought U.S. imports of Venezuelan oil to 28-year lows.

Which brings us to the next question: how does the Canadian “heavy crude” get to BP’s Whiting refinery to begin with? Enter: Enbridge’s Line 6A pipeline.

Alberta Clipper/Line 6A

Dan Goldblatt, a spokesman for the Indiana Department of Environmental Management, told DeSmogBlog he wasn’t sure what type of oil was spilled into Lake Michigan from the BP Whiting refinery  — which goes back to why it’s just being referred to as “oil” at this point by officials.

Goldblatt said the U.S. Environmental Protection Agency (EPA) will be looking into it as part of its investigation.

“Right now they’re more focused on recovery than on what type of oil it is,” Goldblatt said. “That’s a little further down the line.”

When asked about which pipeline feeds the BP Whiting refinery beast, Goldblatt told DeSmogBlog it’s Enbridge’s Line 6A pipeline.

Part of Enbridge’s “Lakehead System,” Line 6A stretches from Superior, Wis., to Enbridge’s Griffith/Hartsdale holding terminal in northwest Indiana.

“Lakehead System serves all the major refining centers in the Great Lakes … through its connection with the affiliated Canadian pipeline,” explains Enbridge’s Lakehead System website. “Total deliveries on the Lakehead System averaged 1.65 million [barrels per day] in 2009, meeting approximately … 70 percent of the refinery capacity in the greater Chicago area.”

Enbridge’s Line 67 (AKA Alberta Clipper) pipeline serves as the corridor between Alberta’s tar sands and Line 6A. Alberta Clipper currently awaits a capacity expansion permit from the U.S. State Department, which it applied for in November 2012 and needs because it’s a U.S.-Canada border-crossing line.

It was originally approved by President Barack Obama’s State Department in August 2009.

If approved, Line 67′s expansion would morph it from a 450,000 barrels per day pipeline to a 570,000 barrels per day pipeline. Its “full design capacity is 880,000 [barrels per day] of heavy crude oil,” (emphasis mine) according to theexpansion application it submitted to the State Department.

Hydrocarbon Technologies, which offers “market insight tools covering all segments of the global hydrocarbons market,” also points to the ties that bind Alberta’s tar sands, Enbridge’s Line 6A and the BP Whiting refinery.

“Once the modernisation project is complete, BP aims to increase the use of Canadian crude from oil sands via the Enbridge [Line 6A] pipeline, which runs from Alberta to Illinois,” explains Hydrocarbon Technologies.

In 2010, Line 6A spilled in a major way in Romeoville, Ill., with 6,050 barrels of oil escaping. An account in oil and gas industry trade publication PennEnergy explains the pipeline was carrying “heavy crude oil.”

“When the leak occurred, the Line 6A was transporting approximately 459,000 barrels per day of heavy crude oil,” the reporter detailed.

The “Dilbit Disaster” Connection

Line 6A is connected to the 2010 spill of over 843,000 gallons of tar sands into the Kalamazoo River, a Lake Michigan tributary. Literally.

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