Appeals Court Rules Keystone XL South Approval Was Legal, Lifting Cloud Over TransCanada

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In a 3-0 vote, the U.S. Appeals Court for the Tenth Circuit has ruled that the southern leg of TransCanada’s Keystone XL pipeline was permitted in a lawful manner by the U.S. Army Corps of Engineers.

Keystone XL South was approved via a controversial Army Corps Nationwide Permit 12 and an accompanying March 2012 Executive Order from President Barack Obama. The pipeline, open for business since January 2014, will now carry tar sands crude from Cushing, Oklahoma to Port Arthur, Texas without the cloud of the legal challenge hanging over its head since 2012.

As previously reported here on DeSmog, the Sierra Club and co-plaintiffs already lost their Appeals Court legal challenge to impose an injunction and stop diluted bitumen (“dilbit”) from flowing through Keystone XL South back in October 2013. Now that same Court, albeit different judges, have ruled that the pipeline approval process itself was also legally acceptable.

Blame the Victim

At its core, the case centered around legal issues pertaining to the March 2012 Obama White House Executive Order and accompanying Army Corps’ Nationwide Permit 12 issued to TransCanada to build Keystone XL South. Sierra Club and co-plaintiffs had argued that by issuing a Nationwide Permit 12, the Army Corps helped TransCanada dodge the more rigorousNational Environmental Policy Act (NEPA) process, thus violating NEPA.

The judges begged to differ, saying no violation of NEPA transpired because Sierra Club never mentioned concerns during the public commenting period, such as potential oil spills. In turn, argued one judge, that was not something “obvious” the Corps should have examined.

Judge Robert E. Bacharach, an Obama-appointee, wrote:

We may assume, for the sake of argument, that the Corps knew that issuance of the nationwide permit could lead to installation of oil pipelines, which in turn could create environmental risks from oil spills…Regardless of whether that view was correct, it went unchallenged in the public comments for theissuance of Nationwide Permit 12 and the State Department’s consideration of the Keystone XL Pipeline.

Not mentioned by Bacharach: the Nationwide Permit 12 process, unlike a NEPA review, does not allow for public comment. Nor does it have public hearings. For example, at a June 2012 press conference, Texas-based landowner David Daniel decried the lack of chances to comment publicly on Keystone XL South.

Despite lack of an opportunity to submit public comments to the Corps on Keystone XL South, another judge used the same argument to side with TransCanada and the Army Corps.

“I conclude that Sierra Club’s argument that the Corps improperly deferred portions of its NEPA analysis to the verification stage was not made to the agency during the reissuance process and is therefore waived,” wrote Judge Carolyn McHugh, another Obama-appointee. “Sierra Club has pointed to no part of the record in which any commenter objected to the Corps’ decision to defer parts of its NEPA analysis to the district engineers or prospective lead agency.”

McHugh made that conclusion even though she sided with the Sierra Club’s argument that the Corps’ review was ultimately inadequate in its scope.

“To be sure, accounting in advance for the broad range of possible impacts resulting from the wide variety of utility lines authorized under NWP 12 is a daunting task,” she wrote. “But compliance with NEPA is not excused simply because compliance is difficult.”

No NEPA, No Problem

A federal court ruling came to an analogous conclusion in August 2014 for Enbridge’s Flanagan South pipeline, also permitted via the Army Corps’ Nationwide Permit 12 process.

A similar case remains on the docket for the U.S. District for the District of Minnesota as it pertains to what environmental groups have called an “illegal scheme” that avoided a NEPA review. The “scheme” was used to permit Enbridge’s Alberta Clipper expansion project.

Those Enbridge dilbit-carrying pipelines are two of the three pieces of what DeSmog has coined the “Keystone XL Clone,” which like the Keystone Pipeline System, brings Alberta’s tar sands crude down to Gulf coast refineries and in small quantities, for now, onto the global export market.

No NEPA review for tar sands-carrying pipelines that cross the borders of many states and in the case of Alberta Clipper, the U.S.-Canada border? At least for now, federal courts and the Obama Administration have made clear, no problem.



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