“You have to be lucky all the time. We only have to be lucky once.”

The American burying beetle just one of the factors in case opposing Keystone XL

In 1984, the Irish Republican Army tried to kill British Prime Minister Margaret Thatcher with a bomb. They did not succeed, but they did send a message.

“You have to be lucky all the time. We only have to be lucky once.”

The same can be said for pipeline opponents. The pipeline company has to be lucky all the time, but the opponents only have to be lucky once.

We saw that, yet again, on Nov. 8, when Montana federal judge Brian Morris quashed the presidential permit for the Keystone XL pipeline.

This came as things were finally coming together for what might be the most beleaguered project in North America right now. Pipeline News ran two stories recently which, for the first time in many years, showed a glimmer of hope. One highlighted the fact that the company was inspecting its pipe, which had been sitting on the ground since 2011, to make sure its coating was still good.

This case comes just a few months after another federal court, this one in British Columbia, quashed a permit for another pipeline, the Trans Mountain Expansion.

The pipeline opponents are following the same strategy – flood the courts with every single legal argument under the sun, and you only need one to stick to kill the project. Judge Morris found a few things that stuck.

Morris apparently came to the conclusion that governments can’t change their mind. That was one of the issues in the 54-page ruling I spent the better part of an hour reading through. Particular attention in the judgement was paid to the fact that climate change was cited as a reason to deny the Presidential Permit in 2015, but that the new 2017 record of decision (ROD) does not talk about climate change.

What the judgement does not discuss, however, is that there was a change in administration during that time, and that this was a campaign item. In particular, I just happened to be the guy to ask Trump if he would approve the Keystone XL project. He said he would, and upon election, he did, and granted a permit for it. And the people, by electing him, had in fact changed their mind. But that’s not good enough for the judge.

He ruled that the National Environmental Policy Act and Administrative Procedure Act “require a detailed justification for reversing course and adopting a policy that ‘rests upon factual findings that contradict those which underlay its prior policy.’”

“The Department must give “a reasoned explanation for disregarding facts and circumstances that underlay or were engendered by the prior policy,” he ruled, adding, “The Court vacates the 2017 ROD and remands with instructions to provide a reasoned explanation for the 2017 ROD’s change in course.”

Apparently getting elected saying “I’m going to change that decision” is not a good enough reason. When the administration makes a decision, even if it’s the wrong decision, then it’s set in stone unless you provide a “reasoned explanation” to change course, and that reasoned explanation is not made in the ballot box.

The clearest evidence that this judgment is bogus is its finding that the State Department should have considered increased flow on the Alberta Clipper pipeline, when it was considering the greenhouse gas impacts of Keystone XL.

Let me be clear on this: Alberta Clipper was an Enbridge, not TransCanada, pipeline. It, too, was a 36-inch export pipeline built from Canada to the U.S. After it went into service, they cranked up the pumps a few years later and its capacity went from 450,000 bpd to 880,000 bpd.

The judge found that the cumulative climate impacts of Keystone XL and Alberta Clipper should be considered. But nowhere does he bring up the cumulative climate impacts of North Dakota adding 1 million barrels per day in production since the time Alberta Clipper went into service, or Texas adding 1.9 million barrels per day in the same time frame. Nor does the judgement include mention of any of the pipelines, like Dakota Access Pipeline (DAPL), that haul this oil. It’s only Canadian oil production, and these two new Canadian pipelines, that need to be considered.

Some other items in the judgement Morris, quite fairly, ignored. The plaintiffs threw everything but the kitchen sink into this lawsuit. Of particular note are endangered species. Not only did they want the State Department to consider those species south of the 49th parallel, but north of it as well.

“Plaintiffs next argue that the Department violated NEPA by failing to consider sufficiently potential environmental impacts in Canada,” he noted.

Thankfully, we get to be our own country. He ruled, “The Court will defer to the government of Canada’s environmental review of Keystone’s impacts within its own jurisdiction.”

With regards to endangered species, Morris wrote, “Plaintiffs allege that the Department failed to use the best available science to assess harm to whooping cranes, interior least terns, and piping plovers. Plaintiffs allege that the Department failed to address oil spills and extraterritorial impacts. Plaintiffs allege finally that the Department failed to analyze reasonably impacts to the black-footed ferret, rufa red knot, northern longeared bat, and western prairie fringed orchid.”

Here’s a nice nugget: “FWS (U.S. Fish and Wildlife Services) identified the American burying beetle as the only listed species likely to be affected adversely by Keystone after it was proposed again in 2017.”

All told, he did not make any orders on the endangered species front.

Maybe this decision will be good for the American burying beetle, after all. The beetle in question requires carrion to breed. With all these dying pipeline projects, surely there’s got to be a body lying around, somewhere.

 

Brian Zinchuk is editor of Pipeline News. He can be reached at brian.zinchuk@sasktel.net

© Copyright 2018 Pipeline News

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