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Legal Case: White House Argues Against Considering Climate Change on Energy Projects

9:20 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

The White House

The White House

Just over a month before the United Nations convenes on September 23 in New York City to discuss climate change and activists gather for a week of action, the Obama White House Council on Environmental Quality (CEQ) argued it does not have to offer guidance to federal agencies it coordinates with to consider climate change impacts for energy decisions.

It came just a few weeks before a leaked draft copy of the Intergovernmental Panel on Climate Change’s (IPCC) latest assessment said climate disruption could cause “severe, pervasive and irreversible impacts for people and ecosystems.”

Initially filed as a February 2008 petition to CEQ by the International Center for Technology Assessment, the Sierra Club and the Natural Resources Defense Council (NRDC) when George W. Bush still served as President, it had been stalled for years.

Six and a half years later and another term into the Obama Administration, however, things have finally moved forward. Or backwards, depending on who you ask.

NEPA and CEQ

The initial February 2008 legal petition issued by the plaintiffs was rather simple: the White House’s Council for Environmental Quality (CEQ) should provide guidance to federal agencies it coordinates with to weigh climate change impacts when utilizing the National Environmental Policy Act (NEPA) on energy policy decisions.

A legal process completely skirted in recent prominent tar sands pipeline cases by both TransCanada and Enbridge, NEPA is referred to by legal scholars as the “Magna Carta” of environmental law.

CEQ oversees major tenets of environmental, energy and climate policy. It often serves as the final arbiter on many major legislative pushes proposed by Congress and federal agencies much in the same way the White House’s Office of Information and Regulatory Affairs (OIRA) does for regulatory policy.

In February 2010, Obama’s CEQ showed signs it would utilize NEPA in its policy decision-making process with regards to climate change, issuing a “Draft Guidance for Greenhouse Gas Emissions and Climate Change Impacts” and opening up a 90-day public comment period. Read the rest of this entry →

State Dept. Overseers of Contentious Enbridge Tar Sands Pipeline Workaround Have Industry, Torture Ties

1:51 pm in Uncategorized by Steve Horn

Camp Delta, Guantanamo Bay, Cuba

The Sierra Club, National Wildlife Federation (NWF) and other green groups recently revealed that pipeline giant Enbridge got U.S. State Department permission in response to its request to construct a U.S.-Canada border-crossing tar sands pipeline without earning an obligatory Presidential Permit.

Enbridge originally applied to the Obama State Department to expand capacity of its Alberta Clipper (now Line 67) pipeline in November 2012, but decided to avoid a “Keystone XL, take two” — or a years-long permitting battle — by creating a complex alternative to move nearly the same amount of diluted bitumen (“dilbit”) across the border.

The move coincides with the upcoming opening for business of Enbridge’s “Keystone XL” clone: the combination of the Alberta Clipper expansion (and now its alternative) on-ramp originating in Alberta and heading eventually to Flanagan, Ill., the Flanagan South pipeline running from Flanagan, Ill. to Cushing, Okla. and the Cushing, Okla. to Port Arthur, Texas Seaway Twin pipeline.

Together, the three pieces will do what TransCanada‘s Keystone XL hopes to do: move dilbit from Alberta’s tar sands to Port Arthur’s refinery row and, in part, the global export market.

Environmental groups have reacted with indignation to the State Department announcement published in the Federal Register on August 18. The public commenting period remains open until September 17.

Jim Murphy, senior counsel for NWF, referred to it as an “illegal scheme,” while a representative from 350.org says Enbridge has learned from the lessons of its corporate compatriot, TransCanada.

“When we blocked Keystone XL, the fossil fuel industry learned that they have a much stronger hand to play in back rooms than on the streets,” said Jason Kowalski, policy director for 350.org. “They will break the law and wreck our climate if that’s what it takes for them to make a buck.”

But as the old adage goes, it takes two to tango.

That is, influential State Department employees helped Enbridge find a way to smuggle an additional 350,000 barrels of tar sands per day across the border without public hearings or an environmental review.

Thus far, those following the issue have described the Enbridge maneuver as some sort of bureaucratic snafu.

“If anyone who’s high up in the State Department actually knew about this, they’d be up in arms,” 350.org’s Kowalski said in a recent interview with EnergyWire in reaction to State’s decision.

The reality, though, is more sordid. That is, higher-ups made this call, not just “bad apples.”

One of them has a key tie to the oil and gas industry, while the other helped lay the groundwork for the controversial “extraordinary rendition” torture program as a Bush Administration State Department attaché.

Patrick Dunn’s Industry Ties

On July 24, State Department staffer Patrick Dunn signed off on a letter rubber-stamping Enbridge’s pipeline chess move. In giving Enbridge authorization on official State Department letterhead, Dunn claimed it was not a form of authorization.

“Enbridge’s intended changes…do not require authorization from the U.S.Department of State,” Dunn wrote in the letter. “[W]e will consider [your] letter and its attachments to amend and to be part of your Presidential Permit for the capcity (sic) expansion in Line 67.”

Dunn’s letter does not give his job title, perhaps leading NWF to write him off as simply a “mid-level State Department official” in an August 25 blog post. His current position and State Department background, however, tells a different story.

February 2014 letter obtained by DeSmogBlog lists Dunn’s role as deputy office director for the Bureaus of European Affairs, the Western Hemisphere and African Affairs.

More specifically, Dunn heads up the three regions’ bureaus of energy resources, described as a “chief of staff” in an August 11 article published on Dominican Today. That article highlighted Dunn’s efforts — alongside Vice President Joe Biden — to cut deals with the Dominican Republic’s government, turning the country into an importer of gas obtained via hydraulic fracturing (“fracking”) in the U.S.

Before working his way up to the powerful Bureau of Energy Resources, Dunn helped lead numerous U.S. Embassies abroad, including in Honduras and Angola as top economic adviser, and Cape Verde as deputy embassy director.

What came before any of that, though, may go a long way in explaining how he came to oversee such an important cross-border pipeline project in the first place.

According to the Petroleum Equipment Suppliers Association (PESA), Dunn graduated in 1997 from the Association’s Foreign Service Officer Energy Industry Training Program, which is funded in part by the State Department and has a Board of Directors stuffed with oil and gas industry executives.

“PESA’s Foreign Service Officer Energy Industry Training Program was created in 1993 to increase the practical knowledge of energy attaches and economic officers with responsibility for oil and gas issues stationed in American embassies in countries where energy is a major issue,” reads a Program description.

A glance at PESA’s website demonstrates that industry executives regularly serve as presenters at the Foreign Service Officer Energy Industry Training Program.

Deborah Klepp’s Ties to Rendition, Corrupt Contracting

Though Dunn wrote the July 24 letter to Enbridge, he is not the only senior level State Department staffer overseeing the Enbridge Alberta Clipper file.

Read the rest of this entry →

After Oregon Rejects Coal Export Plan, Long Beach Votes to Export Coal and PetKoch

1:33 pm in Uncategorized by Steve Horn

Flag against a blue sky: Green Port Long Beach

The “Green” Port of Long Beach will now export millions of tons of pollutants per year.

Just a day after the Oregon Department of State Lands shot down a proposal to export 8.8 million tons per year of coal to Asia from the Port of Morrow in Boardman, Oregon, the Long Beach City Council achieved the opposite.

In a 9-0 vote, the Council voted “yay” to export both coal and petroleum coke (petcoke, a tar sands by-product) to the global market — namely Asia — out of Pier G to the tune of 1.7 million tons per year. Some have decried petcoke as “dirtier than the dirtiest fuel.“

More specifically, the Council determined that doing an environmental impact statement before shipping the coal and petcoke abroad was not even necessary.

decision originally made in June and then appealed by Earthjustice on behalf of the Sierra Club, Natural Resources Defense Council (NRDC) and Communities for a Better Environment, the Council shot down the appeal at an August 19 hearing.

“We are very disappointed about the decision, but that does not diminish the amazing victory in Oregon,” Earthjustice attorney Adrian Martinez said in a statement provided to DeSmogBlog via email. “The decision in Long Beach just highlights the grasp that the fossil fuel industry has on the City’s leaders.”

The Earthjustice legal challenge and the the subsequent August 19 hearing was not about banning coal or petcoke exports. Rather, Earthjustice and its clients requested that the City of Long Beach do an environmental impact statement for two companies given contracts to export the commodities for 15-20 years.

One of those companies, Oxbow Carbon, is owned by the “Other Koch Brother,” William “Bill” Koch. Like his brothers David and Charles Koch, he has made a fortune on the U.S. petcoke storage and export boom. Also like his brothers, he is a major donor to the Republican Party.

But the Long Beach City Council voted “nay” in unanimous fashion to do the environmental impact study. Earthjustice had argued it was required to do an environmental review under the legal dictates of the California Environmental Quality Act (CEQA).

“It’s disappointing that the City would turn a blind eye to even doing some basic analysis of the impacts of this decision to lock into 15 years of exporting dirty fuels abroad,” said Martinez.

“More than 100 residents showed up at the August 19 hearing to support pausing this deal and are deeply concerned about how climate change and pollution from exporting dirty fuels impacts them and future generations.”

Adding insult to injury, Sierra Club endorsed Vice Mayor and City Council member Suja Lowenthal in her Democratic Party primary race for State Assembly, which she recently lost.

The floodgates have been opened, then, to export massive amounts of coal and petcoke from the self-styled “Green Port.”

It comes at a time when numerous California refineries are retooling themselves to blend more tar sands diluted bitumen (“dilbit”), which gets to the Golden State mainly via rail.

Further, it happens at the same time critics say the Obama Administration is exporting climate change by exporting coal abroad — often to countries without any meaningful regulations — even as his administration regulates U.S.-based coal-fired power plants.

Union, Oxbow Representatives Oppose Enviro Review

While the majority of those who testified at the August 19 hearing before the Long Beach City Council voted spoke in favor of doing an environmental impact statement, several industry executives and union workers spoke out against it.

“First and foremost, you should know the facilities on Pier G are world-class operations that set the bar for environmental excellence in our industries. We are very proud of what we do here with the port,” Clayton Headley, Oxbow’s vice president of supply for the Pacific region stated at the hearing.

Read the rest of this entry →

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.

Read the rest of this entry →

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.”

Read the rest of this entry →

Gen. James Jones Didn’t Disclose Industry Ties Before Testimony at KXL Hearing

12:40 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

The U.S. Senate Foreign Relations Committee held a hearing today (March 13) on the U.S. State Department’s national interest determination for the northern half of the proposed TransCanada Keystone XL tar sands pipeline.

Four witnesses will testify: Keystone XL proponent Karen Alderman Harbert, the president and CEO of the U.S. Chamber of Commerce’s Institute for 21st Century Energy; retired NASA climatologist James Hansen, an adjunct professor at Columbia University’s Earth Institute and Keystone XL opponent; and Sierra Club Executive Director Michael Brune, another critic of the Keystone XL.

And then there’s James Jones. He’s set to testify on behalf of the pipeline, with his affiliation listed as President of Jones Group International. He won’t be testifying at the request of the committee’s Democrats, but rather its Republicans, even though he formerly served as national security adviser to President Barack Obama.

Described as offering ”high level advisory and consulting services in the areas of international energy policy,” Jones Group — which doesn’t list its clients — is far from Jones’ only career gig.

DeSmogBlog investigation has revealed Jones has several oil and gas industry ties that weren’t disclosed to the Senate Foreign Relations Committee before the hearing.

Among other ties, BuzzFeed recently revealed Jones currently serves as a consultant for the American Petroleum Institute (API), which has spent over $22 million lobbying on behalf of Keystone XL since 2008. Environmental Resources Management, Inc. (ERM Group) — the contractor chosen by the State Department to conduct the environmental review for the pipeline — is an API member.

Friends of the Earth made a public call to Jones to reveal his client list ahead of his Senate testimony.

“Our representatives in Congress have a right to learn all of the pertinent facts about the Keystone XL pipeline unfiltered by corporate special interests,” reads the letter. “Disclosing all relevant payments from interests advocating for or against the pipeline will help our representatives decide how to balance the competing information they are sure to receive.”

Below are some of Jones’ clients, revealed by a DeSmogBlog investigation.

U.S. Chamber of Commerce and Chevron

Prior to joining President Obama’s  team as national security adviser in 2008, Jones served as the President and CEO of the U.S. Chamber of Commerce’s Institute for 21st Century Energy, a position he held since March 2007.

According to a January 2014 U.S. Chamber conference call, Jones met Chamber CEO Tom Donohue at the World Economic Forum in Davos, Switzerland in February 2007. That’s where the two first talked about the idea of creating the institute.

During his time heading the institute, Jones earned $900,000. Jones also simultaneously served on Chevron’s Board of Directors from May - December 2008, earning $290,000.

After serving as President Obama’s national security advisor for just under two years — stepping down in October 2010 from what Democracy Now! host Amy Goodman called “Chevron in the White House“ — Jones picked up where he left off and became a U.S. Chamber of Commerce Fellow, a position he still holds today.

Jones is now intricately involved in the Chamber’s “Energy Works for U.S.” campaign launched in January 2014. The campaign’s policy platform includes endorsement of the Alberta tar sands expansion and Keystone XL as a vehicle through which to bring tar sands to market.

Some of the Chamber Board of Directors‘ members are oil and gas company executives, including representatives of ConocoPhillips and Phillips 66. The New York Times revealed Chevron is a Chamber member in an October 2010 article.

Chevron gave Senate Foreign Relations Committee members $25,000 for the 2012 elections.

Atlantic Council

While sitting as CEO and President of the Institute for 21st Century Energy, Jonesconcurrently served as Chairman of the Atlantic Council from 2007-2009, a position he held until becoming President Obama’s National Security Adviser. He now sits as the Founding Chairman of the Council’s Brent Scowcroft Center on International Security.

The Council has a domestic oil and gas industry corporate membership list that includes Chevron, General Electric, ConocoPhillips, ExxonMobil and a foreign oil and gas industry corporate membership list including BP, Eni, Shell, Setgaz, Trans Adriatic Pipeline, Oil Terminal SA, Nabucco and Transgaz, among others.

Van Scoyoc Associates

Jones also serves an adviser for the powerful lobbying firm Van Scoyoc Associates, a position he was named to in July 2011. National Journal explained Jones will provide Van Scoyoc with “advice relating to client-service improvements, market trends, and strategic planning.”

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ALEC’s Fracking Chemical Disclosure Bill Moving Through Florida Legislature

2:16 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog 

A sticker of the Monopoly game's mascot, Uncle Moneybags, labelled ALEC

ALEC is polluting environmental law in Florida.

The American Legislative Exchange Council’s (ALEC) model bill for disclosure of chemicals injected into the ground during the controversial hydraulic fracturing (“fracking”) process is back for a sequel in the Sunshine State legislature.

ALEC’s model bill was proposed by ExxonMobil at its December 2011 meeting and is modeled after a bill that passed in Texas’ legislature in spring 2011, as revealed in anApril 2012 New York Times investigative piece. ALEC critics refer to the pro-business organization as a “corporate bill mill” lending corporate lobbyists a “voice and a vote” on model legislation often becoming state law.

The bill currently up for debate at the subcommittee level in the Florida House of Representatives was originally proposed a year ago (as HB 743) in February 2013 and passed in a 92-19 vote, but never received a Senate vote. This time around the block (like last time except for the bill number), Florida’s proposed legislation is titled the Fracturing Chemical Usage Disclosure Act (HB 71), introduced by Republican Rep. Ray Rodrigues. It is attached to a key companion bill: Public Records/Fracturing Chemical Usage Disclosure Act (HB 157).

HB 71 passed on a party-line 8-4 vote in the Florida House’s Agriculture and Environment Subcommittee on January 14, as did HB 157. The next hurdle the bills have to clear: HB 71 awaits a hearing in the Agriculture and Environment Appropriations Subcommittee and HB 157 awaits one in the Government Operations Subcommittee.

Taken together, the two bills are clones of ALEC’s ExxonMobil-endorsed Disclosure of Hydraulic Fracturing Fluid Composition Act. That model — like HB 71 — creates a centralized database for fracking chemical fluid disclosure. There’s a kicker, though. Actually, two.

First kicker: the industry-created and industry-owned disclosure database itself —FracFocus — has been deemed a failure by multiple legislators and by an April 2013 Harvard University Law School study. Second kicker: ALEC’s model bill, like HB 157, has a trade secrets exemption for chemicals deemed proprietary.

First “Halliburton Loophole,” then “ExxonMobil Loophole”

Back when the ALEC model bill was debated in the Texas legislature in spring 2011 (and before it was endorsed by ExxonMobil and eventually adopted as a model by ALEC), the bill was touted as an antidote to the lack of transparency provided at the federal level on fracking chemicals by both industry and environmental groups, such as the Environmental Defense Fund and the Texas League of Conservation Voters (LCV).

“[T]his is proof positive that the public, environmental groups, and the state’s energy industry can work together to ensure the health and safety of Texans,” the Texas LCV said in May 2011.

Rep. Rodrigues said he was impressed by these dynamics when researching the bill online in comments provided by email to DeSmogBlog.

“I was pleased to see the Environmental community and the Energy community jointly draft this legislation,” he said.

The lack of federal level transparency is mandated by law via the Energy Policy Act of 2005, as outlined in a sub-section of the bill best known as the “Halliburton Loophole.”

The “Halliburton Loophole” — named such because Halliburton is an oil services company that provides fracking services and because when it was written, the company’s former CEO, Dick Cheney, was vice president of the United States and oversaw the industry-friendly Energy Task Force — gives the oil and gas industry a free pass on fracking chemical disclosure, deeming the chemicals injected into the ground during the process a trade secret.

Yet, far from an antidote to the “Halliburton Loophole,” a new loophole has been created in its stead at the state level — the “ExxonMobil Loophole” — which now has the backing of ALEC. The results haven’t been pretty.

An August 2012 Bloomberg News investigation revealed FracFocus merely offers the façade of disclosure, or a “fig leaf” of it, as U.S. Rep. Diane DiGette (D-CO) put it in the piece.

“Energy companies failed to list more than two out of every five fracked wells in eight U.S. states from April 11, 2011, when FracFocus began operating, through the end of last year,” wrote Bloomberg. “The gaps reveal shortcomings in the voluntary approach to transparency on the site.”

As we reported on DeSmogBlog in December 2012, FracFocus is a public relations front for the oil and gas industry:

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Keystone XL Fork in the Road: TransCanada’s Houston Lateral Pipeline

1:49 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

Houston Refinery at night

The southern leg of the Keystone XL pipeline is scheduled to bring oil & tarsands to Houston’s refineries starting in January.

Only Barack Obama knows the fate of the northern half of TransCanada’s Keystone XL tar sands pipeline.  But in the meantime, TransCanada is preparing the southern half of the line to open forcommercial operations on January 22.

And there’s a fork in that half of the pipeline that’s largely flown under the radar: TransCanada’s Houston Lateral Pipeline, which serves as a literal fork in the road of the southern half of Keystone XL’s route to Gulf Coast refineries.

Rebranded the “Gulf Coast Pipeline” by TransCanada, the 485-mile southern halfof Keystone XL brings a blend of Alberta’s tar sands crude, along with oil obtained via hydraulic fracturing (“fracking”) from North Dakota’s Bakken Shale basin, to refineries in Port Arthur, Texas. This area has been coined a “sacrifice zone” by investigative journalist Ted Genoways, describing the impacts on local communities as the tar sands crude is refined mainly for export markets.

But not all tar sands and fracked oil roads lead to Port Arthur. That’s where the Houston Lateral comes into play. A pipeline oriented westward from Liberty County, TX rather than eastward to Port Arthur, Houston Lateral ushers crude oil to Houston’s refinery row.

“The 48-mile (77-kilometre) Houston Lateral Project is an additional project under development to transport oil to refineries in the Houston, TX marketplace,” TransCanada’s website explains. “Upon completion, the Gulf Coast Project and the Houston Lateral Project will become an integrated component of the Keystone Pipeline System.”

Boon for Houston’s Refinery Row

Houston’s LyondellBasell refinery is retooling itself for the looming feast of tar sands crude and fracked oil bounty that awaits from the Houston Lateral’s completion.

“The company is spending $50 million to nearly triple its capacity to run heavy Canadian crude at the Houston refinery, to 175,000 bpd from 60,000 bpd,”explained a March article in Reuters.

LyondellBasell admits TransCanada’s Houston Lateral project is a lifeline ensuring its Houston refinery remains a profitable asset.

“Over time, heavy Canadian oil is going to be extremely important to this refinery,” the company’s spokesman David Harpole said in a February interview with Bloomberg. “It’s not all getting down there today but as time goes on, that will become more and more powerful to an asset like we have.”

But LyondellBasell’s not the only company with skin in the game. Valero — whose refining capacity is currently overflowing with fracked Eagle Ford shale oil — is also considering expanding its capacity to refine more tar sands crude.

Not “What If,” But “Right Now”

A financially lucrative asset to refining companies like LyondellBasell and Valero, Houston’s refineries are an issue of life or death for those living within the vicinity.

“In a December 2010 report, the Sierra Club linked tar sands refinery emissions to prenatal brain damage, asthma and emphysema,” a March Huffington Post article explained. “A recent Houston-area study found a 56 percent increased risk of acute lymphocytic leukemia among children living within two miles of the Houston Ship Channel, compared with children living more than 10 miles from the channel.”

Like Port Arthur, Houston — the headquarters for some of the biggest oil and gas companies in the world — is a major “sacrifice zone” for front-line communities, with many people suffering health impacts from the city’s four petrochemical refineries.

“Much of the debate around the Keystone XL pipeline has focused on the dangers of extracting and transporting the tar sands,” DeSmogBlog contributor Caroline Selle wrote in a May 2013 article. “Left out, however, are those in the United States who are guaranteed to feel the impacts of increased tar sands usage. Spill or no spill, anyone living near a tar sands refinery will bear the burden of the refining process.”

With Keystone XL’s southern half currently being injected with oil and with TransCanada counting down the weeks until it opens for commercial operations, those living in front-line refinery neighborhoods face a daunting “survival of the fittest” task ahead.

“With toxic chemical exposure nearly certain, it is unclear what the next step will be for residents [living in refinery neighborhoods],” Selle wrote in her May article. “[T]his is a life or death struggle more immediate than the ‘what-if’ of a pipeline spill. And it’s not a ‘what-if, [but rather] the fight is ‘right now.’”

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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.

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