Keystone XL: Administration’s Flouting of Law Goes to Court

Today in federal district court in Great Falls, Montana, the next chapter in the battle over the proposed Keystone XL tar sands pipeline is being written. In a suit brought by NRDC and its allies at Northern Plains Resource Council, Bold Alliance, Center for Biological Diversity, Friends of the Earth, and Sierra Club, we argue that, in rushing to issue TransCanada’s cross-border permit, the State Department violated the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and the Endangered Species Act (ESA). These violations stem from the Trump Administration’s reliance on outdated, inaccurate, and incomplete environmental and economic assessments of the proposed project that were used to arbitrarily reverse the State Department’s earlier denial of the permit, based on the same information.

The case comes at a time that many are questioning the basic economic viability of a project like Keystone XL. Following the project’s revival by President Trump and his State Department, TransCanada struggled to find interested shippers willing to reserve space on the deeply contentious pipeline. Meanwhile, analysis of the state of the tar sands industry in Alberta has revealed that production growth may be nearing its end as projects that were started before the oil crash in 2014 finally near completion. Following that, there are very few of the necessary planned capital expenditures needed to drive growth in the struggling industry.

Pipe for Keystone XL has been sitting in this North Dakota field since 2011.

Credit: Bret Clanton

Keystone XL’s woes are only magnified by competition from other pipeline builders, all of whom are facing growing public opposition to the new, unneeded pipelines that they are trying to build through farms and ranches, across pristine rivers and streams, and through vulnerable communities. Kinder Morgan’s new Trans Mountain pipeline proposal is now being challenged in Canadian federal courts under similar arguments to those that eventually doomed Enbridge’s Northern Gateway. Enbridge’s attempts to build a new cross-border tar sands pipeline across the Midwest in the guise of replacing its aging Line 3 pipeline have hit a wall of opposition in Minnesota, including the state’s Department of Commerce coming out strongly against the pipeline based on a lack of economic need and threats to the environment. And even TransCanada has been forced to read the writing on the wall, announcing last week that it was cancelling its plans to pursue a $15 billion+ boondoggle previously known as Energy East. Though we believe that none of these pipelines are needed—especially not in a carbon constrained world—construction of just one would create excess export capacity not likely to ever be filled, thus undermining the business case for any other pipeline.

Today’s hearing won’t touch on the merits of the case, but it does represent the first airing of what are likely to be numerous legal challenges standing in the way of Keystone XL ever being built. In Nebraska, the state’s Public Service Commission is currently reviewing TransCanada’s route permit application, with a decision expected in November. That decision, regardless of its outcome, is likely to be appealed—a process that could take two or more years. And even then, the fight is far from over, as numerous additional legal challenges loom on the horizon including fights over the use of eminent domain by a foreign corporation to seize farmland in Nebraska.

NRDC and its allies’ challenge of the Trump Administration’s reckless disregard for our nation’s environmental laws is an important reminder of what projects like Keystone XL put on the line and why they must be challenged. A safe climate, clean water, clean air—projects like Keystone put all of them at risk. We are at a time and place in history where it is time to move on, where we begin making the necessary cuts to our fossil fuel consumption to keep our climate livable and accelerate the global transition to cleaner, renewable sources of energy.

About the Authors

Josh Axelrod

Policy Analyst, Canada Project, International program

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