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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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Silent Coup: How Enbridge is Quietly Cloning the Keystone XL Tar Sands Pipeline

10:48 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog 

A Canadian flag dripping with oil

Despite activist opposition, “pipeline giant Enbridge has quietly cloned its own Keystone XL in the U.S and Canada.”

While the debate over the TransCanada Keystone XL tar sands pipeline has raged on for over half a decade, pipeline giant Enbridge has quietly cloned its own Keystone XL in the U.S and Canada.

It comes in the form of the combination of Enbridge’s Alberta Clipper (Line 67), Flanagan South and Seaway Twin pipelines.

The pipeline system does what Keystone XL and the Keystone Pipeline System at large is designed to do: ship hundreds of thousands of barrels per day of Alberta’s tar sands diluted bitumen (“dilbit”) to both Gulf Coast refineries in Port Arthur, Texas, and the global export market.

Alberta Clipper and Line 67 expansion

Alberta Clipper was approved by President Barack Obama and the U.S. State Department (legally required because it is a border-crossing pipeline like KeystoneXL) in August 2009 during congressional recess. Clipper runs from Alberta to Superior, Wis.

Initially slated to carry 450,000 barrels per day of dilbit to market, Enbridge now seeks an expansion permit from the State Department to carry up to 570,000 barrels per day, with a designed capacity of 800,000 barrels per day. It has dubbed the expansion Line 67.

As reported on previously by DeSmogBlog, Line 67 is the key connecter pipeline to Line 6A, which feeds into the BP Whiting refinery located near Chicago, Ill., in Whiting, Ind. BP Whiting — the largest in-land refinery in the U.S. — was recently retooled to refine larger amounts of tar sands under the Whiting Refinery Modernization Project. 

Line 67 also connects to Line 61 via a fork in the road of sorts in Wisconsin. From there, it heads to Flanagan, Ill., the namesake of the start of Enbridge’s Flanagan South pipeline.

Like Keystone XL, Enbridge’s Line 67 expansion project has faced unexpected delays in its State Department and Obama Administration review process.

Flanagan South also shares a key legal commonality with TransCanada’s Keystone pipeline system.

That is, like Phase II and Phase III of that system — best known to the general public as Keystone XL’s southern leg and to TransCanada as the Gulf Coast Pipeline Project — it was permitted by the U.S. Army Corps of Engineers using the controversial Nationwide Permit 12 (NWP 12) process.

As documented here on DeSmogBlog, the southern leg of Keystone XL and Flanagan South both played a central role in separate but related precedent-setting federal-level court cases.

In reviewing the legality of approval via NWP 12 through the lens of “harms,” the courts ruled in both cases that the harms of losing corporate profits for both Enbridge and TransCanada trump the potential harms of ecological damage the pipelines could cause in the future. Climate change went undiscussed in both rulings.

According to a May 2014 company newsletter, Enbridge is “on schedule to put [Flanagan South] in operation later this year.”

“After eight months of construction, we are now in the home stretch for the nearly 600-mile pipeline project,” touts the newsletter. “At the peak of construction, between October 2013 and January 2014, there were on average 3,650 construction workers over the entire route — about 1,600 of those workers from communities located along the pipeline route.”

Seaway Pipeline

In a June 16 article titled, “Blame Canada,” Reuters pointed to two new “pipes set to hit U.S. Gulf with heavy crude,” which — as it pertains to Canada — is industry vernacular for tar sands.

Flanagan South was one of the pipelines pointed to in the Reuters piece.

The other is Enbridge’s Seaway Twin pipeline, co-owned on a 50/50 joint venture basis with Enterprise Products Partners. Seaway Twin, like Keystone XL’s southern leg, runs from Cushing, Okla., to Port Arthur, Texas.

Enbridge scheduled Line 67 to go on-line in mid-2014 and reach full-capacity by mid-2015.

But, because of backlash against the proposal from environmentalists and citizens who live along the pipeline expansion’s route, the company does not expect to receive a State Department expansion permit until mid-2015.

Flanagan South Pipeline

Read the rest of this entry →

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.

Read the rest of this entry →

US Court Denies Halt on Pipeline Set to Replace Keystone XL Northern Half

2:31 pm in Uncategorized by Steve Horn

It’s like deja-vu, all over again.

Cross-Posted from DeSmogBlog

The ever-wise Yogi Berra once quipped “It’s like déjà vu all over again,” a truism applicable to a recent huge decision handed down by the United States District Court for the District of Columbia.

A story covered only by McClatchy News‘ Michael Doyle, Judge Ketanji Brown Jackson shot down Sierra Club and National Wildlife Federation’s (NWF) request for an immediate injunction in constructing Enbridge’s Flanagan South tar sands pipeline in a 60-page ruling.

That 600-mile long, 600,000 barrels per day proposed line runs from Flanagan, Illinois – located in the north central part of the state – down to Cushing, Oklahoma, dubbed the “pipeline crossroads of the world.” The proposed 694-mile, 700,000 barrels per day proposed Transcanada Keystone XL northern half also runs to Cushing from Alberta, Canada and requires U.S. State Department approval, along with President Barack Obama’s approval.

Because Flanagan South is not a border-crossing line, it doesn’t require the State Department or Obama’s approval. If Keystone XL’s northern half’s permit is denied, Flanagan South – along with Enbridge’s proposal to expand itsAlberta Clipper pipeline, approved by Obama’s State Department during Congress’ recess in August 2009 - would make up that half of the pipeline’s capacity and then some.

At issue in the District Court was the legality of the U.S. Army Corps of Engineers issuing a Nationwide Permit 12 to shove through the Flanagan South (much like the Appeals Court case covered here on DeSmogBlog just weeks ago with Transcanada’s Keystone XL’s southern half, rebranded the “Gulf Coast Pipeline Project” by Transcanada).

Sierra Club and NWF argued for an injunction – or halt – in constructing and pumping tar sands through Flanagan South until the legality of issuing a Nationwide Permit 12 is decided, an issue still awaiting the decision of Judge Jackson. Like the Keystone XL southern half case, Nationwide Permit 12 was used instead of going through the National Environmental Policy Act (NEPA).

NEPA – unlike the fast-track Nationwide Permit 12 - requires the EPA to issue a full draft Environmental Impact Statement and final Environmental Impact Statement, with 1-2 month public commenting periods following each Statement. EPA must take public comments into account when making its final judgments on pipeline projects.

Use of Nationwide Permit 12 has quickly become a “new normal” for fast-track approval of tar sands pipelines and other controversial domestic energy infrastructure projects.

Corporate Profits vs. Environmental Harms

Judge Jackson - an Obama appointee with a legal background predominantly in corporate law - boiled down the competing parties’ arguments into a “harms” balancing test: Enbridge’s corporate profits vs. irreparable environmental and ecological harms Enbridge’s Flanagan South may cause.

She wasted little time getting to the point, issuing her judgment denying Sierra Club’s and NWF’s injunction request by the second paragraph on the second page of the ruling. She then spent the next 58 pages giving in-depth legal justifications as to why.

“Plaintiffs have significantly overstated the breadth of federal involvement in the pipeline project and have failed to establish sufficiently that applicable federal statutes and regulations would require the extensive environmental review process that Plaintiffs seek,” Jackson wrote. “Moreover, Plaintiffs have fallen short of demonstrating that irreparable harm will result if the current construction proceeds during the pendency of this litigation, and the Court is not convinced that the balance of harms and public interest factors weigh in Plaintiffs’ favor.”

Flanagan Shrouded in Secrecy

One of the major grievances of Sierra Club and NWF had – like Sierra Club had with the Army Corps of Engineers permitting for Keystone XL’s southern half – is that Nationwide Permit 12 generally deals with small projects deemed “single and complete,” usually half an acre in size or less. Read the rest of this entry →

US Court: Transcanada’s Keystone XL Profits More Important than Environment

3:58 am in Uncategorized by Steve Horn

pipeline

The financial needs of the Transcanada outweigh the needs of the environment, says US court

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. Bush and 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 response throughout the Environmental Impact Statement phase, allowing robust public participation in the process.

Sierra Club Staff Attorney Doug Hayes explained in an interview with DeSmogBlog 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.

Read the rest of this entry →

Oops, Inc.: Firm with History of Cover-Ups Hired to Clean Up Arkansas Tar Sands Spill

5:50 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

Arkansas’ Attorney General Dustin McDaniel has contracted out the “independent analysis of the cleanup” of the ExxonMobil Pegasus tar sands pipeline spill to Witt O’Brien’s, a firm with a history of oil spill cover-ups, a DeSmogBlog investigation reveals.

At his April 10 press conference about the Mayflower spill response, AG McDaniel confirmed that Exxon had turned over 12,500 pages of documents to his office resulting from a subpoena related to Exxon’s response to the March 29 Pegasus disaster. A 22-foot gash in the 65-year-old pipeline spewed over 500,000 gallons of tar sands dilbit through the streets of Mayflower, AR.

McDaniel also provided the media with a presser explaining that his office had“retained the assistance of Witt O’Brien’s, a firm whose experts will immediately begin an independent analysis of the cleanup process.”

Witt O’Brien’s describes itself as a “global leader in preparedness, crisis management and disaster response and recovery with the depth of experience and capability to provide services across the crisis and disaster life cycle.”

But the firm’s actual performance record isn’t quite so glowing. O’Brien’s has had its hands in the botched clean-up efforts of almost every high-profile oil spill disaster in recent U.S. history, including the Exxon Valdez spill, the BP Deepwater Horizon spill, the Enbridge tar sands pipeline spill into the Kalamazoo River, and Hurricane Sandy.

Most troubling of all, Witt O’Brien’s won a “$300k+ contract to develop a Canadian-US compliant Oil Spill Emergency Response Plan for TransCanada’s Keystone Oil Pipeline Project” in Aug. 2008.

Thus, if the Keystone XL (KXL) pipeline inevitably suffered a major spill, Witt O’Brien’s would presumably handle the cleanup. That should worry everyone along the proposed KXL route.

From OOPS, Inc. to Witt O’Brien’s

In Dec. 2012, Witt Associates merged with O’Brien’s Response Management to form Witt O’Brien’s. The merger at-large is owned by Seacor Holdings.

O’Brien’s was formed in the early 1980s by Jim O’Brien – a former U.S. Coast Guard officer – as O’Brien Oil Pollution Service, otherwise known by OOPS, Inc. That’s not a joke, it was their actual name.

OOPs, Inc. was acquired by Seacor Holdings Inc. under the auspices of Seacor Environmental Services division in 1997, later renamed The O’Brien’s Group (TOG). TOG was later re-named O’Brien’s Response Management Inc. in Oct. 2008.

Importantly, in Dec. 2009, O’Brien’s acquired a powerful public relations spin machine wing, as its former website explains:

In December of 2009, O’Brien’s completed the successful acquisition of PIER (Public Information Emergency Response) Systems Inc., a crisis communications company that has developed the PIER software application, an all-in-one, web-based solution for communications management, public relations, media monitoring, employee notification, and business continuity.

Witt Associates, meanwhile, was founded by James Witt, former head of the Federal Emergency Management Agency (FEMA) under President Bill Clinton who also served Gov. Clinton in Arkansas as head of the state’s Office of Emergency Services. He started Witt Associates upon leaving his Clinton Administration post.

Oil and Gas Industry Ties Run Deep at Witt O’Brien’s

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