Trump executive memoranda seek to expedite permits for GHG-intensive Keystone XL, Dakota Access pipelines

President Donald J. Trump has issued several executive memoranda aimed at speeding up consideration by federal agencies of the greenhouse gas-intensive Keystone XL and Dakota Access pipelines.

Two executive memoranda released late Tuesday relate to the controversial projects.

According to a report in the Washington Post, White House spokesperson Sean Spicer said Tuesday that Trump acted because he is “very, very keen on making sure that we maximize our use of natural resources to America’s benefit.”

Because they aim to aid completion of two projects that would facilitate the burning of more than 1.2 million barrels of oil per day and raise the risks of serious environmental damage from spills and leaks, the directives are likely to reignite intense arguments over both pipelines.

The Trump memorandum related to the Keystone XL pipeline invites that project’s developer, the foreign firm TransCanada Keystone Pipeline L.P., to “to promptly re-submit its application to the Department of State for a Presidential permit for [its] construction and operation.”

The permit is necessary because the Keystone XL pipeline would cross the Canada-United States border.

It also imposes a 60-day deadline on the State Department’s consideration of any permit application, suggests that a 2014 environmental impact statement prepared for the project be considered sufficient to comply with applicable federal environmental laws including the National Environmental Policy Act and the Endangered Species Act, and waives all requirements to notify other agencies of the permit application and to wait for their responses before proceeding to a decision.

Trump used language designed to preserve discretion granted to the secretary of state to approve or deny any application TransCanada files.

“Nothing in this memorandum shall be construed to impair or otherwise affect . . . the authority granted by law to an executive department or agency, or the head thereof,” the memorandum says.

At present there is no pending application for a permit to build the Keystone XL pipeline across the Canada-U.S.  border. The Obama administration State Department rejected such an application on Nov. 6, 2015.

Arguments about the economic and environmental impacts of the Keystone XL pipeline raged, and were considered by the Obama administration, for years after it was first proposed by TransCanada in 2008.

The  U.S. Environmental Protection Agency rejected an initial environmental impact statement in July 2010 because it failed to adequately evaluate plans to respond to oil spills, pipeline safety issues, or potential greenhouse gas emissions associated with the project.

After a second EIS was prepared in 2011, the State Department delayed consideration of a permit to consider impacts on the Sand Hills region of Nebraska.

The Obama administration then rejected the pipeline construction application in January 2012.

TransCanada re-applied for the permit later that year. The 2014 EIS referred to in Trump’s memorandum was prepared after that second application.

keystone-xl-route
Three phases of the Keystone XL pipeline are complete. Only the fourth phase, which is planned to run from a point near Hardisty, Alberta, to Steele City, Nebraska, is not yet complete. That portion of the project was blocked by the Obama administration. Graphic courtesy TransCanada L.P. and Wikimedia.

The 1,204 mile-long Keystone XL pipeline would run from a terminal near Hardisty, Alberta to Steele City, Nebraska, where it would connect to both a second pipeline that would carry crude to the coast of the Gulf of Mexico and to a third that would move oil to collection points in Illinois.

With a maximum carrying capacity of more than 800,000 barrels per day of crude oil extracted from Alberta’s tar sands – a process that has caused extensive destruction to Canada’s 1.3 billion acre, wildlife-rich boreal forests – and the Bakken basin of eastern Montana and western North Dakota, Keystone XL would cause an annual increase in carbon dioxide emissions to the atmosphere of 147 million to 168 million metric tons.

Greenhouse gas emissions resulting from the burning of tar sands oil, which is extracted from a highly toxic mix of bitumen, clay and sand, would be equivalent to the GHG emissions of 7.8 coal fired power plants, according to a State Department document explaining the Obama administration’s 2015 rejection of the pipeline permit application.

Keystone XL would also open up foreign markets to tar sands crude for the first time.

“Keystone actually is really driving an expansion of tar sands oil extraction,” Susan Casey-Lefkowitz, chief program officer at Natural Resources Defense Council, said. “You have to look not only at the emission of what goes through the pipeline, but also opening up a market that would not otherwise exist.”

Climatologist James Hansen, the former NASA scientist who first drew significant attention to anthropogenic climate change in the late 1980s, has warned of the consequences of encouraging combustion of the Alberta tar sands crude. He wrote in May 2012 that facilitation of its use by construction of the Keystone XL pipeline would mean “game over” for the planet’s equable climate:

“The concentration of carbon dioxide in the atmosphere has risen from 280 parts per million to 393 p.p.m. over the last 150 years. The tar sands contain enough carbon – 240 gigatons – to add 120 p.p.m. Tar shale, a close cousin of tar sands found mainly in the United States, contains at least an additional 300 gigatons of carbon. If we turn to these dirtiest fuels, instead of finding ways to phase out our addiction to fossil fuels, there is no hope of keeping carbon concentrations below 500 p.p.m. – a level that would, as Earth’s history shows, leave our children a climate system that is out of their control.”

In addition to the climate impacts of the project, then-secretary of state John F. Kerry also explained that the Obama administration had concluded that few jobs would be created by its construction or operation and that the project would not significantly lower the cost of fossil fuel energy.

Most legislators on Capitol Hill have favored the Keystone XL pipeline despite the climate and other environmental objections, including possible impacts on water supplies, that have been raised against it. The 114th Congress passed a bill that would have forced approval of the Keystone XL permit in Jan. 2015. Obama vetoed it the next month.

Earlier Congresses had considered measures aimed at speeding up consideration of the project.

Trump also issued another executive memorandum aimed at expediting consideration by the U.S. Army Corps of Engineers of an alternative route for the Dakota Access pipeline.

In that memorandum, Trump commanded the secretary of the Army to

“instruct the Assistant Secretary of the Army for Civil Works and the U.S. Army Corps of Engineers (USACE), including the Commanding General and Chief of Engineers, to take all actions necessary and appropriate to:

“(i) review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas under section 28 of the Mineral Leasing Act, as amended, 30 U.S.C. 185; permits or approvals under section 404 of the Clean Water Act, 33 U.S.C. 1344; permits or approvals under section 14 of the Rivers and Harbors Act, 33 U.S.C. 408; and such other Federal approvals as may be necessary;

“(ii) consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota), and whether to withdraw the Notice of Intent to Prepare an Environmental Impact Statement in Connection with Dakota Access, LLC’s Request for an Easement to Cross Lake Oahe, North Dakota, dated January 18, 2017, and published at 82 Fed. Reg. 5543;

“(iii) consider, to the extent permitted by law and as warranted, prior reviews and determinations, including the Environmental Assessment issued in July of 2016 for the DAPL, as satisfying all applicable requirements of the National Environmental Policy Act, as amended, 42 U.S.C. 4321 et seq., and any other provision of law that requires executive agency consultation or review (including the consultation or review required under section 7(a) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a));

“(iv) review and grant, to the extent permitted by law and as warranted, requests for waivers of notice periods arising from or related to USACE real estate policies and regulations; and

“(v) issue, to the extent permitted by law and as warranted, any approved easements or rights-of-way immediately after notice is provided to the Congress pursuant to section 28(w) of the Mineral Leasing Act, as amended, 30 U.S.C. 185(w).”

The President’s repeated use of the phrase “to the extent permitted by law and as warranted” indicates that the Army Corps of Engineers may retain its authority to complete the preparation of an environmental impact statement that examines alternative routes for the Dakota Access pipeline, as ordered by the Obama administration in Dec. 2016.

On the other hand, the language in Trump’s Dakota Access memorandum requires the Army Corps of Engineers to decide quickly whether to proceed with the EIS and grant the developer, Energy Transfer Partners L.P., permission required to build underneath Lake Oahe.

A Sept. 2016 opinion by a federal district judge may reinforce any determination by the  Trump administration to reverse a decision by the Obama administration three months later to proceed with an environmental impact statement. The Army Corps of Engineers said that it would complete the EIS on alternative routes because of the objections against the project lodged by native American nations in the Dakotas.

“Although we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Jo-Ellen Darcy, the then-assistant secretary of the Army for civil works, said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”

The Dakota Access project is considered by many native Americans to raise the risk that an oil spill would contaminate their water supply or flood tribal burial sites and other sites of cultural importance.

The September ruling by Judge James E. Boasberg  rejected arguments that the tribes had not been adequately consulted about the possible impacts on cultural resources during the permit review process, as required by the National Historic Preservation Act:

“[T]his Court does not lightly countenance any depredation of lands that hold significance to the Standing Rock Sioux. Aware of the indignities visited upon the Tribe over the last centuries, the Court scrutinizes the permitting process here with particular care. Having done so, the Court must nonetheless conclude that the Tribe has not demonstrated that an injunction is warranted here.”

Native American nations opposed to the Dakota Access did not argue that the Army Corps of Engineers had violated NEPA or any other applicable federal law in the extent of communication and discussion with them that had occurred or by initially proposing to apply a nationwide permit under the Clean Water Act to the project.

The Obama administration’s Dec. 2016 determination to undertake a full environmental impact analysis necessitated the denial of the permission to cross Lake Oahe needed by Energy Transfer Partners L.P., which is what likely drove Trump’s decision to ask the Army Corps of Engineers to reconsider whether to complete the EIS.

Planned to wind from its origin in North Dakota and through South Dakota and Iowa to an oil tank farm near Patoka, Illinois, Dakota Access would abut lands of the Cheyenne River Lakota Nation and the Standing Rock Indian Reservation.

dakota-access-pipeline-route-courtesy-wikimedia
This graphic shows the route of the proposed Dakota Access pipeline, which is complete except for the portion that crosses Lake Oahe in North Dakota. Image by NittyG (own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=52776844).

The developer’s proposal to bury the pipeline beneath the bed of Lake Oahe in North Dakota has raised fears of water pollution and other environmental damage from pipeline leaks and other mishaps.

Dakota Access would permit the consumption of at least 470,000 more barrels of crude per day.

Most, or even all, of the oil carried by the two pipelines could be exported. Congress enacted legislation in 2015 that ended a longstanding prohibition on transport of American crude overseas.

A spokesperson for Energy Transfer Partners L.P. refused to say, when asked by a reporter for The Intercept in Sept. 2016, that the company would remain committed to prior claims that all of the oil transported in it would be supplied to the U.S. market.

Environmental conservation community leaders vowed Tuesday to continue their opposition to both projects.

“The world’s climate scientists and its Nobel laureates explained over and over why it was unwise and immoral,” Bill McKibben, the founder of 350.org, said in a statement. “In one of his first actions as president, Donald Trump ignores all that in his eagerness to serve the oil industry. It’s a dark day for a reason, but we will continue to fight.”

Natural Resources Defense Council president Rhea Suh vowed an all-out battle, saying that the two pipelines “pose a grave threat to our water, communities, and climate.”

“We will use every tool available to help ensure that they are not built,” she said.

One legal academic who specializes in the application of federal environmental law said that he is not convinced that a court would defer to Trump’s executive orders.

“Some people think it’s a matter of snapping fingers, but the courts don’t work that way,” Professor Patrick Parenteau of Vermont Law School told Inside Climate News Tuesday, referring to the Dakota Access project. “There has to be a bona fide, legitimate reason why not proceeding with the assessment that just a month ago the United States government said in court was necessary in order to comply with the law. Why all of the sudden it is not?”

Trump’s precipitous actions on the fourth full day of his presidency overturns decisions taken after years of deliberation and study by his predecessor’s administration and follows a pattern of dishonest rhetoric about the validity of scientists’ understanding that fossil fuel consumption is driving climate change.

In Nov. 2012 businessman Trump labeled climate change a “Chinese hoax” aimed at destroying U.S. manufacturing capability. In Nov. 2016, the regime’s incoming White House chief of staff, lawyer Reinhold R. Priebus, publicly said that the 45th President regards climate change as a “bunch of bunk.”

NOTE: This post was updated on Jan. 25 to reflect that President Trump issued executive memoranda, not executive orders, and that the content of those memoranda allows some agency discretion in handling the pipeline projects.

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