UPDATE: Keystone XL Back in Court, Future Uncertain

Today, in the U.S. District Court for the District of Montana, NRDC and its environmental co-plaintiffs argued that the Trump administration’s rubber-stamp approval of the cross-border permit for the proposed Keystone XL tar sands pipeline violated federal law. The hearing—on our motion for summary judgment—marks the latest pivotal moment in this decade-long fight to protect drinking water, human health, and our shared global climate. If the suit succeeds, the pipeline’s cross-border permit could be voided, throwing the project’s future further into question.

Today’s arguments center around the Trump administration’s blatant disregard for several key environmental laws: The National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA). At the highest level, we argue that the administration’s reliance on an outdated environmental impact statement (once used to deny the very same permit this administration has granted), completed in early 2014, is contrary to NEPA, as much of data, analyses, and conclusions contained in that document are stale and inaccurate. This includes a failure to consider the project’s new route through Nebraska, and a host of critical updates to key information around oil prices, crude-by-rail, oil spill response and preparedness, and greenhouse gas emissions. Finally, we argue that the Fish and Wildlife Service violated the ESA by failing to justify how it reached its conclusions around potential impacts to three key species impacted by the project: the whooping crane, interior least tern, and piping plover.

Several weeks ago, Keystone XL popped up in the news following release of a letter from the proposed pipeline’s owner, TransCanada. In the letter, the company stated that it would start tree clearing to make way for construction camps in the fall of 2018. This wasn’t actually news—but it signaled to some that Keystone XL might be closer to reality than is actually the case. Today’s hearing in Montana paints that picture clearly: this proposed project faces a series of legal, economic, and political hurdles that will only continue the delays that should have long ago led to the project’s final cancellation.

As in previous updates, I outline these hurdles briefly below. And it always bears mentioning that, despite fervent assurances from TransCanada to its investors last fall, the company has still not firmly committed to the project in terms of financing, nearly six months after its promised deadline for doing so.

• Federal Litigation: A ruling in favor of plaintiffs (and against the government and TransCanada) could lead to revocation of the pipeline’s cross-border permit.
• Nebraska Litigation: Briefing is ongoing in the suit brought by landowners against the Public Service Commission’s Nebraska route permit issuance. Oral arguments are expected to take place in September 2018, with a decision sometime in 2019. A decision in plaintiff’s favor could lead to revocation of the pipeline's route permit in Nebraska.
• Prospective Litigation: Numerous landowners along Keystone XL’s route through Nebraska have not agreed to grant the company easements over their property. Because of this, TransCanada will need to rely on eminent domain if it ever reaches the construction phase of the project. This group of landowners has vowed to challenge any use of eminent domain in state court, a process that is likely to take significant time and could lead to as-yet-unaccounted-for delays.
• Public resistance: A growing number of people have signed the “Promise to Protect,” indicating growing public willingness to turn out to protest and otherwise disrupt construction in the event that the project ever moves to that phase.

Some have read problems faced by Keystone XL competitors—the Trans Mountain expansion and the new Line 3—to mean Keystone XL might be poised to “win” the race to build the next pipeline out of Alberta’s tar sands. Don’t believe it. Every tar sands pipeline proposal faces growing legal, economic, political, and social pressures that will only be amplified as the impacts and threats of climate change weigh on the public and political consciousness.

Instead of constantly relitigating the need to stop expanding the development of high-carbon resources (no matter where they are), the debate needs to shift. We need an accelerated transition to cleaner, renewable sources of energy that do not devastate ecosystems and lock us into 50 more years of extracting and burning high-carbon fuels.