The Natural Resources Defense Council, Northern Plains Resource Council, Bold Alliance, Center for Biological Diversity, Friends of the Earth and Sierra Club sued the Trump Administration today for illegally approving a cross-border permit for the Keystone XL tar sands pipeline. In the complaint we contend that the State Department acted in violation of the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) by relying on an outdated and incomplete environmental impact analysis and by arbitrarily reversing its earlier decision to deny a cross-border permit for the same project. In the years since the Obama Administration conducted an environmental review of Keystone XL and rejected it, the case for the tar sands pipeline has only deteriorated as low oil prices are causing major oil companies to flee the tar sands and new studies show that both the climate impacts of tar sands development and the environmental impacts of tar sands spills are worse than we knew. By ignoring all of these developments and arbitrarily reversing the rejection of Keystone XL, the Trump Administration violated laws intended to ensure that we only moved forward on decisions that serve our nation’s interests, based on the best information available. An objective view of that information leads to one conclusion: a project that would move 830,000 barrels of carbon intensive tar sands from Alberta through the U.S. breadbasket is not in the our interest and should be rejected.
Let’s examine the legal arguments in a little more detail.
I. The State Department violated NEPA and the APA by relying on an outdated environmental review for its decision to approve Keystone XL
The State Department’s approval of Keystone XL was made on the basis of an environmental review that was completed in early 2014―an analysis which was based on incomplete information and assumptions that have proven to be fundamentally inaccurate.
One of the key questions in State's 2014 environmental review was whether expanded tar sands production would find a way to the market with or without Keystone XL. In its 2014 environmental review State anchored all of its core conclusions on this question on the assumption that oil prices would stay between $100 and $140 a barrel during Keystone XL's fifty year lifespan. That assumption was the basis for the agency’s conclusion that if Keystone XL didn’t move forward, the tar sands industry would find other ways―such as rail―to expand tar sands production and get it to market. State then reasoned that if tar sands production would expand with or without Keystone XL, it did not have to consider the extensive impacts that extracting, transporting, refining and burning that tar sands would have on our climate, waters, lands and health. State did acknowledge that if oil prices fell below $75 a barrel, all of those fundamental conclusions would be upended―and the cheap transportation provided by Keystone XL would enable high cost tar sands expansion projects to move forward along with all of the environmental impacts associated with them. However, the agency found that scenario so unlikely that they didn’t seriously consider it and it didn't inform its conclusions.
Now, with oil prices at half the levels they were in 2014 and companies like Exxon, Shell, Conoco Phillips, Total and Statoil either selling their tar sands assets or being forced to write them down, it’s clear that this fundamental assumption―and many of the major conclusions in State’s 2014 environmental review―are wrong. The old assumption that tar sands expansion is inevitable by pipeline or rail has been proven wrong―indeed, no major new tar sands project has been greenlighted for construction since early 2014. In addition to ignoring these dramatically altered market conditions for Keystone XL in its decision, State also ignored its own findings in its review of Alberta Clipper that tar sands may be up to 20% more carbon intensive than previously thought. That means that Keystone XL would be responsible for as much as 177 million metric tons CO2e emissions―equivalent to the annual emissions of 37 million passenger vehicles.
Moreover, State did not include any meaningful new analysis of the impact that a tar sands spill would have on the over 1,000 rivers, streams, aquifers and water bodies that Keystone XL would cross following a 2016 National Academy of Sciences study showing that tar sands spills are far more damaging than previously thought and that spill responders do not have the tools to clean them up in water bodies.
These are just a few of the major developments that were ignored by the Trump Administration when it rushed a decision on Keystone XL on the basis of old and outdated information. It is clear that Keystone XL is becoming a boondoggle of a project. The Trump Administration’s failure to do an updated environmental review of Keystone XL was not only bad policy, it violated the law.
II. The Bureau of Land Management is likely relying on the same outdated review to issue permits for Keystone XL through federal lands
Keystone XL would cross approximately forty-five miles of BLM administered land in Montana and would therefore would require right of way grants and temporary use permits. BLM is also subject to the same NEPA requirements that the State Department violated. If the agency moves forward with approvals for Keystone XL on the basis of State’s outdated environmental review, it too will be in violation of federal law.
III. The State Department arbitrarily reversed its 2015 rejection of Keystone XL
When the Obama Administration rejected Keystone XL’s cross border application in November 2015, it did so after conducting a robust National Interest Determination process. The State Department found that approving Keystone XL “would have undercut the credibility and influence of the United States in urging other countries to address climate change.” Little more than one year later, after a series of developments have made the case against Keystone XL even strong, the State Department reversed itself in its 2017 Record of Decision with this half-hearted argument:
“[S]ince then [Keystone XL’s rejection], there have been numerous developments related to global action to address climate change, including announcements by many countries of their plans to do so. In this changed global context, a decision to approve this proposed Project at this time would not undermine U.S. objectives in this area.”
This is an incredibly weak and arbitrary basis for reversing a rigorous National Interest Determination process by another Administration. The United State’s credibility and influence in urging other countries to address the international problem of climate change is at least as important today as it was in 2015. Indeed, the State Department does not discuss what impact its approval of Keystone XL may have on the U.S. ability to urge global action to address climate change, nor does it refer to or purport to analyze the impacts of other major Trump-administration actions that are likely to spur new fossil-fuel development and greenhouse-gas pollution.
Fortunately, even President Trump must abide by federal laws in decisions of this sort. NEPA was put in place to ensure that major decisions that would have major impacts on the American people are made on the basis of the best information available as part of a transparent and public process. The Trump Administration violated that law by insisting on an arbitrary and capricious process to push through the approval of a cross-border permit for Keystone XL. Today we’re turning to the courts to reverse this illegal approval.