TransCanada applies again for permit to build Keystone XL pipeline

The Canadian company that wants to build the first pipeline to move tar sands oil from Alberta to the U.S. Gulf Coast has launched a third attempt to obtain American permission for cross-border construction.

TransCanada Corp. announced Thursday that it had filed the permit application with the U.S. Department of State.

The current leader of the American government’s executive branch, real estate developer and reality television star Donald J. Trump, expressly invited the re-application earlier this week after years of deliberation led to two rejections of the pipeline project by former President Barack Obama’s administration.

Trump issued an executive memorandum on Jan. 24 that imposes a 60-day deadline for the State Department to decide whether to grant the permit application.

As of Friday the State Department lacks any senior leadership. Former Exxon-Mobil chief executive officer Rex Tillerson, nominated by Trump to succeed former secretary of state John F. Kerry, is awaiting a confirmation vote in the U.S. Senate.

Meanwhile, the staff of senior diplomats and foreign service officers who lead the department’s 13 divisions has been gutted. The regime demanded, and received, the resignations of at least seven senior department officials this week.

Replacements for most of those senior staff members will have to be nominated by Trump and then confirmed by the Senate, a process not likely to be completed by the time the deadline Trump imposed for considering TransCanada’s application is reached.

 

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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Senate votes approval of KXL pipeline bill

The U.S. Senate approved Thursday the contentious bill to cut the President out of the process of deciding whether to authorize the KXL oil pipeline.

The vote followed two more days dedicated, in part, to debate on a series of amendments to the bill.

Nearly all of those amendments failed to reach the 60-vote threshold for adoption.

Senators voted on about a dozen amendments this week, following a successful filibuster of S.1 by minority Democrats late last week, and several of them implicated the nation’s environmental policy:

  • proposal by Sen. Benjamin Cardin, D-Md., to assure that communities along the pipeline route are notified of the risks of leaks or ruptures was defeated, 37 ayes to 67 nos.
  • Sen. Gary Peters, D-Mich., sought to require a certification by federal pipeline regulators that they have adequate resources to assure safety; it was beaten back by Republicans, 40-58.
  • An amendment by Sen. Bernie Sanders, I-Vt., to provide tax rebates for solar energy systems failed on a 40-58 vote.
  • An attempt by Sen. Jerry Moran, R-Kan., to force the removal of the lesser prairie chicken from the federal list of endangered and threatened species was voted down, 54-44.
  • Montana GOP Sen. Steve Daines offered an amendment that would have forced presidents to obtain the approval of state governors and legislatures before designating national monuments; it failed, 50-47.
  • An amendment by Sen. Chris Coons, D-Del., that would have put the Senate on record as recognizing the impacts of climate change on the nation’s infrastructure was voted down, 47-51.
  • Alaska’s senior senator, Republican Lisa Murkowski, proposed to end wilderness study area status for all areas not designated by Congress as wilderness within one year of being considered; that amendment was rejected on a 50-48 vote.
  • Sen. Richard Burr, R-N.C., offered an amendment that would have permanently re-authorized appropriations into the Land and Water Conservation Fund; that amendment lost by one vote, 59-39.
  • An effort by Sen. Tom Udall, D-N.M., to include in the bill a federal renewable energy standard was defeated, 45-53.

After debate and votes on all amendments, Democrats again sought to delay a vote on the merits. This time they were unsuccessful, as the Senate shut off debate with a 62-35 vote for cloture.

Democrats Michael Bennet of Colorado, Thomas Carper of Delaware, Robert Casey of Pennsylvania, Joseph 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 voted with all of the chamber’s Republicans to move to a final vote on the bill.

The final vote mirrored that margin, with the same Democratic senators voting with the majority GOP.

S.1 now moves back to the House of Representatives, where Republican Speaker John Boehner of Ohio will have to decide whether to ask that chamber to vote to approve the amendments approved by the Senate or, instead, send the different House and Senate versions to a conference committee.

Josh Earnest, a White House spokesperson, reiterated Thursday that President Obama will veto any bill that attempts to deprive him of authority to decide whether to grant the permit necessary for a Canadian corporation to build the KXL pipeline across the U.S.-Canada border.

“[O]ur position on the Keystone legislation is well known,” Earnest said. “And if, in fact, the legislation that passed the House also passes the Senate, then the President won’t sign it.”

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.

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.

 

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.