Montana federal judge orders halt to Keystone XL

Everything from bats and whooping cranes to pipeline demand brought up by plaintiffs

Great Falls, Montana. – A federal judge in Montana has put the brakes on the Keystone XL pipeline. U.S. Federal Court Brian Morris quashed the Presidential Permit for the Keystone XL pipeline project on Nov. 8, throwing the massive on-again, off-again project into a quandary, yet again.

The lawsuit was brought on by the Indigenous Environmental Network, North Coast Rivers Alliance and Northern Plains Resource Council. They take issue with the State Department, alleging TransCanada violated National Environmental Policy Act (NEPA).

The ruling puts the kybosh on further work until the government more fully reviews the pipeline’s environmental impact, and gives reason to why it changed its mind with regards to climate change.

This comes as TransCanada had been gearing up for full-on construction of the pipeline in the second half of 2019 after a decade of delay. In July the corporation started inspecting and, as needed, refurbishing its massive stockpiles of pipe that have been sitting since 2011, in preparation for usage in the project.

This decision comes after TransCanada had spent the better part of a year sorting out its right-of-way in Nebraska, which had to be altered from its original route before being approved.

TransCanada said in an emailed statement, “We have received the judge’s ruling and continue to review it. We remain committed to building this important energy infrastructure project.”

Keystone XL had been all but dead when then-President Barrack Obama denied a presidential permit in 2015. That changed with the election of President Donald Trump in November 2016. In one of his first acts after being sworn in, Trump invited TransCanada to resubmit its application, which he then approved a few months later in the spring of 2017 (referred to in the case as a record of decision, or ROD). His reversal of the 2015 decision by former president Barack Obama on the pipeline, in particular with regards to the consideration of climate change as a reason to kill the project, factored into the judgement, without directly referring to either president.

President Trump told reporters on Nov. 9, “It was a political decision made by a judge. I think it’s a disgrace — 48,000 jobs. I approved it. It’s ready to start.”

Saskatchewan Minister of Energy and Resources Bronwyn Eyre said in an emailed statement, “We are very disappointed in the ruling today that delays, once again, this much-needed pipeline.

“Without new pipeline capacity, demand for rail transportation will continue to increase, which will inflate transportation and other costs for Western Canadian oil producers, as well as other rail-dependent industries such as mining and agriculture. Additional pipeline capacity is also necessary to address the additional supply expected following the completion of several oil sands projects in Alberta over the next few years.

“We are pleased that TransCanada Corporation remains committed to the Keystone XL project, and we continue to advocate for pipeline access to Canadian tidewater, so that producers aren’t forced to export into an increasingly glutted US market, which discounts the price of Canadian oil.”

Premier Scott Moe posted on Facebook, “Today's news around the Keystone XL Pipeline being blocked is disappointing for Western Canadian producers who need market access for energy.

“And for Saskatchewan, as the oil differential stays near record highs, it impacts everyone in this province.

“We need to get these pipelines built.”

The 36-inch pipeline is to run from Hardisty, Alta., Canada’s principal crude oil hub, to Steele City, Neb. The southern phase of the project, which runs from Nebraska to the Gulf Coast, has been competed and in operation for several years.

The project’s website notes, “Keystone XL still requires federal Bureau of Land Management permits and authorizations in Montana.”

Judgment details

The case’s plaintiffs took a wide approach in opposition to the pipeline, citing items from archeology to the northern long-eared bat, to recent oil spills as reasons to quash the project. They also suggested that the United States should have studied these impacts in Canada.

The plaintiffs argued that the greenhouse gas emissions from not only TransCanada Keystone XL, but the expansion in capacity of the Alberta Clipper pipeline, an Enbridge project, should be considered. (The judgement makes no reference to the fact the pipelines are from different companies. Nor does it refer to pipeline projects solely within the United States, such as the Dakota Access Pipeline (DAPL) that was competed and put into service during this time frame, or its emissions.)

The judge noted regarding Alberta Clipper (built in 2008-2009, with its capacity expanded in later years), “The Department failed, however, to analyze the cumulative greenhouse gas emissions impacts of both pipelines,” and later on says, “The Department should have considered the cumulative impacts of both projects.”

Oil spills from pipelines since 2014 should also be reviewed, he noted, saying, “These new spills and the information provided by them warrant an update.”

The judge took umbrage from the State Department’s change in its climate changes stance on the project, from its 2015 record of decision to its similar 2017 record of decision (e.g. the decision on the Presidential Permit). The judge noted that in 2015, “United States’ climate change leadership provided a significant basis for denying the permit.”

“The Department further recognized the scientific evidence that human activity represents a dominant cause of climate change. The Department cited transboundary impacts including storm surges and intense droughts.”

The interval between the two reports included the change from the Barrack Obama to Donald Trump administrations, but that is not referenced in the judgment.

Morris cited case law in that, “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”

Therefore, Morris noted, “The Department instead simply discarded prior factual findings related to climate change to support its course reversal.”

Several of the arguments made by the plaintiffs focused on whether the State Department should have considered what happens in Canada. This included environmental assessment and protection of the whooping crane, among other items. In each case, the judge deferred to Canadian jurisdiction and evaluation on these matters, stating, “The Court will defer to the government of Canada’s environmental review of Keystone’s impacts within its own jurisdiction.”

His ruling found that the State Department fell short of a “hard look” on several items and it must do supplementary work to comply with its obligations under the National Environmental Policy Act.

These areas include looking at the effects of current oil prices on the viability of the pipeline, the cumulative affects of the Alberta Clipper expansion (an Enbridge project) and Keystone, a survey of potential cultural resources on 1,038 acres, and updating modelling of potential oil spills and recommended mitigation measures.

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