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Recent Federal Court Decision Could Muddy Waters for Keystone XL South, Flanagan South

2:20 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

The case depicts a collision between long-standing principles of environmental law and President Barack Obama’s March 2012 Executive Order expediting pipeline reviews — an order issued six days after delivering a speech in front of the pipe segments that would two years later be pieced together as Keystone XL South, now open for business.

On June 6, the U.S. Court of Appeals for the District of Columbia Circuit handed down a ruling that will serve as important precedent for the ongoing federal legal battles over the Keystone XL and Flanagan South tar sands pipelines.

In the Delaware Riverkeeper v. Federal Energy Regulatory Commission (FERC) case, judges ruled that a continuous pipeline project cannot be segmented into multiple parts to avoid a comprehensive National Environmental Policy Act (NEPA) review. This is what Kinder Morgan proposed and did for its Northeast Upgrade Project.

As reported on DeSmogBlog, the U.S. Army Corps of Engineers did the same thing to streamline permitting for both the southern leg of TransCanada’s Keystone XL and Enbridge’s Flanagan South. Sierra Club and co-plaintiffs were denied injunctions for both pipelines in October and November 2013, respectively.

Delaware Riverkeeper v. FERC dealt with breaking up a new 40-mile long pipeline upgrade into four segments. For the other two cases, the Army Corps of Engineers shape-shifted the two projects — both hundreds of miles long each — into thousands of “single and complete” projects for permitting purposes.

On the day of the Delaware Riverkeeper v. FERC decision, Sierra Club attorney Doug Hayes submitted the case as supplemental authority for the ongoing Flanagan South case.

On May 5, Hayes also submitted paperwork to appeal the Keystone XL Southdecision in front of the U.S. Court of Appeals for the Tenth Circuit, which was docketed by the clerk of Ccurt the next day.

Hayes told DeSmogBlog his side will file an opening brief for the appeal on July 30. It seems likely Delaware Riverkeeper v. FERC will be a key part of that appeal.

In a sign of the importance of the outcome for the oil and gas industry, theAmerican Petroleum Institute (API) entered the Sierra Club v. Army Corps of Engineers case on Keystone XL as an intervenor on May 16, represented by corporate law firm Hunton & Williams.

At the federal level, Hunton & Williams lobbies on behalf of Koch Industries, a company with a major stake in tar sands leases and refining.

“No Uncertain Terms”

Hayes told DeSmogBlog that Delaware Riverkeeper v. FERC could prove a game-changer for the Keystone XL southern leg (now dubbed the Gulf Coast Pipeline Project) appeal, the Flanagan South decision and far beyond.

“Delaware Riverkeeper is important in many respects,” Hayes said. “In general, the D.C. Circuit is considered the second most powerful court in the country and here it held, in no uncertain terms, that agencies must analyze all parts of these interrelated projects under NEPA to get the full picture of the environmental impacts.”

The case depicts a collision between long-standing principles of environmental law and President Barack Obama’s March 2012 Executive Order expediting pipeline reviews — an order issued six days after delivering a speech in front of the pipe segments that would two years later be pieced together as Keystone XL South, now open for business.

Executive Order 13604

Executive Order 13604, signed on March 28, 2012, said “agencies shall…coordinate and expedite their reviews…as necessary to expedite decisions related to domestic pipeline infrastructure projects that would contribute to a more efficient domestic pipeline system for the transportation of crude oil.”

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Dollarocracy: U.S. Congressmen Refuse to Address Keystone XL Southern Half Spill Concerns

2:00 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog  

What’s the U.S. congressional response to the safety issues with the 485-mile southern half of TransCanada‘s Keystone XL pipeline raised by Public Citizen‘s Texas office? Mostly what Simon & Garfunkel called “The Sound of Silence” in their famous song.

DeSmogBlog contacted more than three dozen members of the U.S. Congress representing both political parties to get their take on Public Citizen’s alarming findings in its November investigation (including dents, metal that had to be patched up and pipeline segments labeled “junk”), but got little in the way of substantive responses.

Set to open for business on January 22approved via an Executive Order by President Barack Obama in March 2012 and rebranded the “Gulf Coast Pipeline Project” by TransCanada, the southern half of the pipeline has garnered far less media coverage than its U.S.-Canada border-crossing brother to the north, Keystone XL‘s northern half.

Over two dozen members of the U.S. House of Representatives wrote a letter to President Obama on December 12 expressing concern over the conflicts-of-interest in the U.S. State Department’s environmental review process for the northern half of the line.

But none of them would comment on concerns with the southern half of the line raised in the Public Citizen report after multiple queries via e-mail from DeSmogBlog.

Two to Tango

Only two out the dozens contacted offered somewhat substantive comments.

And one of them, U.S. Rep. Ralph Hall (R-TX) (Left), did not respond to the meat and bones of the question at hand. He did offer some oft-used industry talking points, though.

“The Keystone pipeline will create jobs and help reduce dependence on oil supplies from unfriendly nations,” Hall told DeSmogBlog. ”The State of Texas has a proven track record of successful oversight of the oil and gas industry, including pipelines, and I am confident that they will be diligent in ensuring the pipeline’s safety.”

Hall — who took $59,500 from the oil and gas industry before the 2012 elections and has already taken $12,500 for the upcoming 2014 elections — is far from a neutral stakeholder in the debate over anything pertaining to the petroleum industry.

“Since 2010, Hall has earned as much as $1 million from a company that holds mineral rights along the Barnett Shale,” explained a March 2013 Sunlight Foundation article. “The money was disclosed as dividends from a company called North & East Trading Co. (N&E).”

On the other side of the aisle, U.S. Rep. Gene Green (D-TX) (Right) also responded toDeSmogBlog‘s request for comment, offering more cautious words of support for the southern half of the pipeline’s commencement.

“Over the past decades, our interstate and intrastate pipeline systems have had remarkable safety records, unmatched by rail or highway modes of transportation,” Green stated. 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 →

Dirty Details: Dents, Faulty Welds Found Along Keystone XL Southern Half in Texas

9:03 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

If an ecologically hazardous accident happens to TransCanada’s Keystone XL (KXL) tar sands pipeline, we can’t say we weren’t forewarned. That’s the latest from a press release and YouTube video recently disseminated by the good government group, Public Citizen.

Public Citizen’s Texas office explained, “Dozens of anomalies, including dents and welds, reportedly have been identified along a 60-mile stretch of the southern segment of the Keystone XL pipeline, north of the Sabine River in Texas.”

A recent report appearing in The Houston Chronicle revealed KXL’s southern half is over 75-percent complete and will be on-line by late-2013. That half of the pipeline brings tar sands – also known as diluted bitumen, or “dilbit” – from Cushing, OK (dubbed the “pipeline cross-roads of the world“) down to Port Arthur, TX, where it ends up exported to the global market.

KXL’s northern half is still in its proposal phase. Its eventual fate sits entirely in the hands of President Barack Obama and his U.S. State Department because it’s a border-crossing pipeline. In March 2012, President Obama issued an Executive Order for expediting building of KXL’s southern half.

Earlier this year, Tar Sands Blockade - a group committed to creative non-violent direct action to stop the building of KXL’s southern half – also detected defective welding in the pipeline, akin go that discovered by Public Citizen. The group did so when one of its activists went inside of the pipeline and discovered light seeping through it.

Despite this new concrete evidence from both Public Citizen and Tar Sands Blockade, the State Dept. recently denied Friends of the Earth-U.S.‘s (FOE) request to have its key Freedom of Information Act request expedited, one which would likely expose Big Oil’s influence over State’s KXL northern half decision. State argued the request doesn’t “meet any of the established criteria” for expedition, though Public Citizen’s latest spate of findings shows otherwise.

Faulty Welding: Dirt’s in the Details, Detail’s in the Dirt

An old adage goes, “the dirt’s always in the details” one digs up. So too with this latest revelation by Public Citizen - both figuratively and literally.

“Some of the new pipeline has been in the ground on some owners’ land for almost six months,” Public Citizen’s news release reads. “Landowners are concerned that this digging is indicative of faulty pipeline along the route that could potentially leak and threaten water supplies, and have requested TransCanada and the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) to provide more information about the work.”

The “dirt” in this situation was excavated not merely through landowner speculation, but straight from TransCanada’s own contractors.

“The anomalies and other problems were reported to landowners along the line…by several TransCanada vendors, including an independent inspector and a right-of-way representative,” Public Citizen further explained, also writing that each “marked section [has] a stake that reads ‘Anomaly.’”

“Anomaly” or More of the Same?

Yet, is any of this really an “anomaly”? Again, the “dirt’s in the details.”

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