House of Representatives clears KXL bill on same day Nebraska court rejects challenge to route

The Republican-dominated U.S. House of Representatives passed on Friday a bill that would strip President Barack Obama of the authority to decide whether to authorize the controversial Keystone XL oil pipeline to cross the U.S.-Canada border.

The action came hours after the Nebraska Supreme Court removed one of the causes of delay in the administration’s review of the project. That court reversed a state trial court ruling that the statute under which former GOP Gov. Dave Heineman approved the pipeline route violated the Nebraska constitution.

The White House said again Thursday that President Obama would not decide whether or not to grant a permit allowing the pipeline to proceed until the litigation in Nebraska was resolved.

A committee of the U.S. Senate acted Thursday to approve a bill to expedite the pipeline. That chamber’s Energy & Natural Resources Committee, where Republicans have a 12-10 advantage, gave S.1 a green light with the help of one Democrat – West Virginia’s Joe Manchin.

The vote on the House bill, the proposed Keystone XL Pipeline Act, was 266-153. Every Republican except Justin Amash of Michigan voted “aye.” They were joined by 28 Democrats. Amash voted “present.”

Despite the lopsided sentiment in the chamber in favor of sidelining President Obama and forcing approval of the pipeline, the number of “aye” votes is not enough to override an expected veto of H.R. 3.

Over in the Senate, backers of similar legislation – S.1 – appear to have the 60 votes needed to cut off any attempt to filibuster the bill and approve it. It is not likely that 67 senators would vote to override a veto.

According to a report in The Hill newspaper, Senate majority leader Mitch McConnell, R-Ky., has scheduled a cloture vote on the Senate bill for Monday, Jan. 12.

The House and Senate bills have identical text, which means that the proposed legislation would proceed immediately to President Obama’s desk if the Senate rejects a filibuster of S.1 and then approves it.

The Nebraska Supreme Court ruling did not involve any of the seven justices finding that the law allowing approval of the pipeline route through the state was constitutional. Four justices said the statute violated the state constitution and three opined that the plaintiffs in the case lacked standing to bring the lawsuit. Under Nebraska law five justices must agree that a state law violates the state constitution in order to hold the statute invalid.

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New Congress opens with GOP effort to push through KXL pipeline

The 114th Congress, with Republicans in charge of both chambers, opened Jan. 6 with the new majority showing a determination to move quickly on an attempt force approval of the KXL pipeline.

Sen. Mitch McConnell, R-Ky., the new majority leader, said on Dec. 16 that he would bring a bill that strips President Barack Obama of the authority to reject the KXL pipeline to the floor as the first act of the new GOP majority in the chamber.

The Senate Energy and Natural Resources Committee planned to conduct on Wednesday a hearing on S1, the KXL pipeline bill, but it was postponed after an objection by Sen. Dick Durbin, D-Ill., on behalf of the Democratic caucus.

Whether the delay will affect a mark-up of the bill that is scheduled for Thursday is not yet clear.

A Jan. 6 report in The Hill online newspaper said that there are 63 votes in the Senate to support the planned GOP legislation, including Democrats Michael Bennet of Colorado, Tom Carper of Delaware, Robert Casey of Pennsylvania, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Jon Tester of Montana, and Mark Warner of Virginia.

All of the chamber’s 54 Republicans are co-sponsors of the bill.

The House of Representatives, under GOP control since Jan. 2011, repeatedly passed bills to approve the pipeline during the 112th and 113th Congresses and is expected to again pass such legislation within the week.

The White House press secretary, Josh Earnest, said Tuesday that President Barack Obama would veto any bill that seeks to eliminate the president’s authority to decide whether to grant permission for the pipeline to cross the international border separating the United States from Canada.

“I mean, the fact is this piece of legislation is not altogether different than legislation that was introduced in the last Congress, and you’ll recall that we put out a statement of administration position indicating that the President would have vetoed had that bill passed the previous Congress,” Earnest said. “And I can confirm for you that if this bill passes this Congress the President wouldn’t sign it either.”

Even if an attempted override of a presidential veto could secure the necessary two-thirds affirmative vote in the House of Representatives, it is unlikely that such an attempt would succeed in the Senate. In that chamber 67 votes would be needed to enact the KXL pipeline bill into law over Obama’s objection.

The Department of State’s review of the application for the permit needed to build the pipeline across the U.S.-Canada border is currently delayed by litigation in the Nebraska state courts.

A Lancaster County district judge ruled in February that the state law invoked by the state’s former Republican Gov. Dave Heineman to justify approval of the pipeline route through the state violated the Nebraska constitution.

That decision is now before the Nebraska Supreme Court, which heard oral arguments in the case in September.

Shell again asks Interior to allow Arctic oil drilling

Bowhead whales inhabit the shallow Chukchi Sea. An endangered species, Balaena mysticetus can grow to 40 feet in length and weigh up to 100 tons. Walruses, ringed seals, a variety of whale species, and polar bears also inhabit the Chukchi Sea, as do millions of sea birds of many species. Photo courtesy National Oceanic & Atmospheric Administration, photo by Dave Rugh.
Bowhead whales inhabit the shallow Chukchi Sea. An endangered species, Balaena mysticetus can grow to 40 feet in length and weigh up to 100 tons. Walruses, ringed seals, a variety of whale species, and polar bears also inhabit the Chukchi Sea, as do millions of sea birds of many species. Photo courtesy National Oceanic & Atmospheric Administration, photo by Dave Rugh.

Oil giant Royal Dutch Shell PLC has decided to again seek U.S. government permission to drill for oil in the Arctic.

The company filed an exploration plan with the Department of Interior’s Bureau of Ocean Energy Management on Thursday, according to a report in Financial Times.

An earlier effort to obtain approval for drilling in the fragile Chukchi Sea was blocked by the federal appeals court in San Francisco, which ruled that BOEM’s environmental impact statement on $2 billion worth of leases sold to Shell did not comply with federal law. The decision in Native Village of Point Hope v. Jewell pushed Shell’s nearly decade long effort to extract hydrocarbons from some of the most environmentally sensitive marine areas on Earth back to the drawing boards.

Shell has also experienced a series of machinery disasters in the Arctic, including the grounding of a vessel off the coast of Sitkalidak Island, Alaska in 2012. A Coast Guard report on that incident released last April concluded that “inadequate assessment and management of risks” was a principal cause of it.

Within U.S. terrritorial waters, the federal government owns the sea and seabed beyond 5.6 kilometers past the shoreline. Two statutes that date back to the 1950s – the Submerged Lands Act and the Outer Continental Shelf Lands Act – together authorize the secretary of the interior to lease submerged oil and gas deposits. However, that authority is subject to a variety of constraints imposed by broadly applicable environmental laws, including the National Environmental Policy Act. NEPA requires federal agencies to study the environmental impact of “major federal actions” before moving forward with them.

The drilling rig Kulluk ran aground near Alaska on Dec. 31, 2012. This image shows the distressed vessel on Jan. 1, 2013. Image courtesy Wikimedia.
The drilling rig Kulluk ran aground near Alaska on Dec. 31, 2012. This image shows the distressed vessel on Jan. 1, 2013. Image courtesy Wikimedia.

 

Report: 56 senators support Keystone approval

A majority of U.S. senators is likely to support legislation that would force the Obama administration to green-light the controversial Keystone XL oil pipeline, according to a report by The Hill.

The report explained that proponents of the measure have not yet decided whether to attach it as amendment to pending legislation related to energy efficiency improvements or push a stand-alone bill.

In either case, it is not clear that there are enough votes in the U.S. Senate in favor of an immediate approval of the pipeline to overcome a likely filibuster by those opposed to it.

Sixty votes would be needed to limit debate and bring such a measure to a floor vote.

Even if it passed the Senate, and then was approved by the Republican-controlled U.S. House of Representatives, it is possible that President Barack Obama would veto it. Proponents of an immediate approval of the Keystone XL pipeline would need 67 votes in the U.S. Senate and two-thirds of the members of the House of Representatives to vote to override a veto in order to force the proposal into law.

 

Settlement to force EPA to propose coal ash disposal rules

The Obama administration committed this week to finalizing coal ash regulations by the end of the year.

The deadline is part of a proposed settlement of a lawsuit challenging the U.S. Environmental Protection Agency’s failure to meet statutory deadlines for the rules.

The settlement of the litigation initiated by ten environmental organizations and one native American tribe does not specify the content of the new coal ash regulations.

Coal ash is the second-largest hazardous waste stream, by volume, in the nation. It is produced when power plants incinerate coal as a means of generating electricity.

The average American coal-fired generation facility produces 125,000 tons of hazardous ash and nearly 200,000 tons of toxic sludge every year, according to the Union of Concerned Scientists.

A Dec. 2008 accident involving the breach of a dam in Tennessee caused the release of more than 1 billion gallons of coal ash slurry. The toxic mixture contained more arsenic, chromium, lead, and manganese than the total amount of those dangerous chemicals released into all American waterways by the whole electric power industry in 2007.

Another accident in Jan. 2009, this one in Alabama, involved about 10,000 gallons of toxic wastewater resulting from coal-fired electricity generation.

Despite a promise by former EPA administrator Lisa Jackson to finalize regulations that specify safe methods of handling coal ash, the agency has not done so. After proposing disposal regulations in June 2010, the agency has not acted to finalize them.

The nation’s principal hazardous waste law, the Resource Conservation and Recovery Act, requires EPA to regulate coal ash disposal. EPA may be able to regulate the substance on the basis of statutory classification as either a “special” waste or a “solid” waste.

In 2011, and again last year, the U.S. House of Representatives passed bills that would have forced EPA to regulate coal ash only as a solid (i.e., non-hazardous) waste. Those proposals have thus far failed to clear the U.S. Senate and attempts to attach the proposal as an amendment to other legislation have not proven successful.

The question of whether to regulate coal ash as a hazardous waste is controversial because about 40 percent of the substance is re-used to make a variety of industrial materials, including concrete. Such a designation would also significantly increase the costs associated with disposal because utilities would have to assure that holding ponds are lined and that leaks are prevented.

In Oct. 2013 a federal district judge rejected the Obama administration’s efforts to secure the dismissal of the lawsuit that is the focus of the settlement.

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A huge coal ash slurry leak in Tennessee in 2008 has helped to provoke a debate about how the Environmental Protection Agency should regulate the byproduct of coal-fired electricity generation. Photo courtesy Tennessee Valley Authority.

State Department releases EIS on Keystone XL pipeline

The proposed Keystone XL pipeline is one step closer to President Barack Obama’s desk, as the U.S. Department of State released Friday a final environmental impact study on the controversial project.

The Keystone XL pipeline would transport up to 830,000 barrels of oil per day from Morgan, Mont. to Steel City, Neb. About 85 percent of the oil would come from tar sands that extend across Manitoba, Saskatchewan, British Columbia and, especially, Alberta.

The process of removing that oil from tar sands and its use as an energy source could add as much as 93 million metric tons of carbon dioxide to the atmosphere each year, according to a Dec. 2013 report by the Stockholm Environment Institute.

A July 2013 report by the Natural Resources Defense Council concluded that, during a 50-year period, the pipeline could cause at least 1 billion more metric tons of the greenhouse gas to be pumped into the atmosphere than would be discharged without it.

The EIS indicates that the State Department, at least, does not concur with opinions that the Keystone XL project will cause an increase in global warming.

“Approval or denial of any one crude oil transport project, including the proposed project, is unlikely to significantly impact the rate of extraction in the oil sands or the continued demand for heavy crude oil at refineries in the United States based on expected oil prices, oil-sands supply costs, transport costs, and supply-demand scenarios,” it says.

The question is a crucial one because Obama has said that he will not approve Keystone XL if its construction would add to the problem of climate change.

The rest of the oil that would be transported by the pipeline would be drawn from the Bakken Shale Formation in western North Dakota.

Environmental advocacy organizations wasted little time before calling on Obama to reject the pipeline.

“Even though the State Department continues to downplay clear evidence that the Keystone XL pipeline would lead to tar sands expansion and significantly worsen carbon pollution, it has, for the first time, acknowledged that the proposed project could accelerate climate change,” Susan Casey-Lefkowitz, the international program director for Natural Resources Defense Council, said in a statement. “President Obama now has all the information he needs to reject the pipeline.”

The publication of the EIS is the latest step in an odyssey that has lasted for nearly six years. President Obama rejected the developer’s first permit request in 2011 because of concerns about the impact on Nebraska’s Sand Hills and its underlying aquifer. The proposed route was later changed, which necessitated both a new permit application and a new environmental impact review of the project.

A 2004 executive order by former President George W. Bush requires a presidential permit for oil and gas facilities that cross U.S. international borders.

The release of a supplemental environmental impact statement triggers a 30-day comment period, which will commence on Feb. 5. Once the deadline for submission of those comments passes, secretary of state John Kerry will make his recommendation about whether the White House should grant the presidential permit required to build the trans-national conduit for oil extracted from Canada’s tar sands.

A coalition of environmental groups argued, in a Jan. 29 letter to Kerry, that the State Department needs to consider the cumulative climate change impacts of both the Keystone XL pipeline and the expansion of the nearby Alberta Clipper pipeline. That project would,if expansion is approved, carry about 880,000 barrels of crude per day. An amendment to an existing presidential permit is required for Enbridge, Inc., the developer of both pipelines, to increase the Alberta Clipper’s capacity.

Construction of the southern half of the pipeline, which will carry oil from Cushing, Okla. to the Gulf of Mexico coast, has recently been completed.

Federal appeals court rejects U.S. plan for oil drilling in Chukchi Sea

The Obama administration’s plan to extract billions of barrels of oil from Arctic seas off the northwest coast of Alaska hit a roadblock in federal court last week.

The federal appeals court in San Francisco ruled Jan. 22 that the U.S. Bureau of Ocean Energy Management, Regulations, and Enforcement’s ‘s environmental impact study was flawed because it assumed a production level far lower than the potential oil production from the project.

The case centers on a lease sale advanced by the administration of President George W. Bush. Called Lease Sale 193, the 2008 decision affects about 30 million acres of the marine region, an area larger than Pennsylvania.

The sale of 487 exploration leases in Lease Sale 193 produced more than $2.6 billion in revenue for Washington, with about $2.1 billion of that coming from Royal Dutch Shell, one of the world’s largest energy companies.

Opponents of the BOEM plan to allow drilling in the area point to the risks it poses to the region’s diverse wildlife.

“The melting Chukchi Sea is no place for drillships,” Rebecca Noblin, the Center for Biological Diversity’s Alaska director, said in a statement. “It’s a place where polar bears hunt for ringed seals, where walruses socialize and bowhead whales make their way to rich feeding grounds.”

The opponents, who include 12 conservation groups, one native Alaskan advocacy organization, and one native Alaskan village, argued that, by underestimating the amount of oil that could be extracted from the area if drilling occurred, BOEM was risking a huge oil spill that would devastate that pristine area.

“This mistake means that the EIS gives only the best case scenario for environmental harm,” Eric Grafe, an attorney with the public interest law firm Earthjustice, said. “All is based on the number of barrels produced. If they get the number wrong, they understate all those other impacts.”

Grafe said that, even if only 1 billion barrels of oil were produced in the area that is subject to the oil lease sale, there would be a 40 percent chance of an oil spill.

“Because it’s so remote and so inaccessible, the assumption is that you’d have to find a significant amount of oil to justify the infrastructure that would have to be put in,” he said. “Right now there’s nothing. No roads, no pipelines. It’s a pristine area. It’s precisely because of that absence of infrastructure that it’s so risky to drill there. If there is an oil spill, you’re not going to have the resources to respond to that oil spill and you can’t clean it up in an icy environment anyway.”

The federal appeals court panel that heard the case agreed that the government’s reliance upon an estimate of 1 billion barrels of oil caused its study of environmental impacts from the drilling activity  to be flawed.

“In the case before us, BOEM was fully aware from the very beginning that if one billion barrels could be economically produced, many more barrels could also be economically produced,” Judge William Fletcher, the lead author of the appellate panel’s opinion, wrote.

There may be as many as 15 billion barrels of oil that are economically viable to extract beneath the Chukchi Sea, according to 1 2011 BOEM analysis.

Environmentalists also point to the contribution to ongoing climate change that extracted oil would make.

“We can’t afford to burn the oil found there,” Grafe said. “We shouldn’t be getting more oil out to burn it if we are going to stay within climate change parameters.”

Shell commenced drilling in the Chukchi Sea in 2012 but experienced numerous problems. A  March 2013 report by the U.S. Department of Interior concluded that Shell committed a series of logistical and planning blunders in connection with its Lease Sale 193-related activities in the Arctic.

“They screwed it up really badly,” Grafe said. “Here’s a company saying ‘we’re ready to drill, we can do it safely’ and it’s a giant fiasco. Nothing goes right.”

Among those problems:

* a containment dome used to prevent the spread of oil spills that was being tested in Puget Sound was “crushed like a beer can,” according to a U.S. Department of Interior official who observed the test;

* a drill ship called the Noble Discoverer slipped anchor and nearly ran aground in Dutch Harbor, AK, then had to quickly be moved from Shell’s exploration site in the Chukchi Sea because an ice storm was rapidly approaching;

* U.S. Coast Guard inspectors found a litany of maritime regulation violations on the vessel and later referred its findings to the U.S. Department of Justice;

* the Noble Discoverer later caught fire and exploded while in port in the Aleutian Islands; and

* another drilling ship, the Kulluck, broke free of a tow and ran aground in Kodiak, AK in Dec. 2012. Shell was trying to move the ship to Seattle to avoid paying Alaska property taxes on vessels used for oil and gas exploration.

“Doing that in the winter when there’s lots of storms in the Gulf of Alaska is risky,” Grafe said. “But they did it.”

The incident involving the Kulluck drill barge remains under investigation by the U.S. Coast Guard.

Under the Outer Continental Shelf Lands Act of 1953 the U.S. Department of Interior has authority over oil and gas exploration and extraction on submerged lands along the country’s coasts. That cabinet department, in turn, includes a specialized agency – BOEM – to handle leasing of the submerged lands for oil and gas development activity. BOEM used to be known as the Minerals Management Service. The Obama administration changed its name in 2010, following the oil spill in the Gulf of Mexico.

The Chukchi Sea lease sale dispute will now go back before a U.S. district judge in Alaska. He will decide whether the holders of oil leases in the Chukchi Sea can proceed to drill after a modified environmental impact statement is prepared or whether the lease sales should be voided altogether.

Judge Ralph Beistline had previously rejected BOEM’s environmental impact statement in a 2010 decision. Later, after the Obama administration made changes to the EIS and proceeded with Lease Sale 193, Beistline upheld that decision. It was that 2011 order that was reversed by the Ninth Circuit last week.

Grafe said that the appeals court’s opinion gives BOEM time to decide whether to abandon the Chukchi Sea leases.

“They could put out a draft EIS and, while they’re doing that process to get a more accurate assessment, not allow any activities to happen on those leases,” he explained. “At the end of that EIS process, when we have a document that more accurately informs the public about the risks, they can reconsider the decision about whether the leases should be there.”

Grafe was referring to an environmental impact statement, which is the study of the environmental impacts likely to result from a “major federal action,” such as marine oil leases, mandated by the National Environmental Policy Act of 1969.

Shell announced this week that it would not attempt to drill in the Chukchi or Beaufort Seas this year.

The case is Native Village of Point Hope v. Jewell, No. 12-35287.

Chukchi Sea ice - photo courtesy NOAA - photo by Karen E. Frey Beluga whale pod in Chukchi sea - photo courtesy NOAA, photo by Laura Morse Walruses in the Chukchi Sea - photo courtesy USGS

Kulluck aground - photo courtesy U.S. Coast Guard, photo by Petty Officer 3rd Class Jonathan Klingenberg

Top photo: Ice on Chukchi Sea (photo courtesy National Oceanic & Atmospheric Administration, photo by Karen E. Frey)

Second photo: Beluga whale pod in Chukchi Sea (photo courtesy National Oceanic & Atmospheric Administration, photo by Laura Morse)

Third photo: Walrus in Chukchi Sea (photo courtesy U.S. Geological Survey)

Fourth photo: The drill ship Kulluck aground in Kodiak, AK, Jan. 1, 2013 (photo courtesy U.S. Coast Guard, photo by Petty Officer 3rd Class Jonathan Klingenberg)