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 →