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Nebraska Lawmakers Plead with Secy. Clinton to Delay Keystone XL Decision

The Nebraskans say that extending the deadline to May 2012 would give the Legislature another session to beef up its oil pipeline safeguards

Jun 3, 2011
(Page 4 of )
Nebraska senator Colby Coash

WASHINGTON—Five Nebraska senators are asking Secretary of State Hillary Clinton to delay a decision on a controversial oil sands pipeline until they have extra time to address outstanding safety, routing and oversight issues.

The U.S. State Department is expected to issue a thumbs-up or thumbs-down on the 1,702-mile, $7 billion Canada-to-Gulf Coast Keystone XL pipeline by the end of the year. However, the Nebraskans emphasized that extending the deadline to May 2012 would give the recently adjourned state Legislature another session to beef up safeguards.

"We respectfully ask you to give the State of Nebraska this additional opportunity to enact state legislation to protect our land, our water and our children's future," the mix of Republicans and Democrats — Sens. Colby Coash, Annette Dubas, Tony Fulton, Ken Haar and Kate Sullivan — wrote in the letter dated May 25.

"In stark contrast to the mature federal regulatory scheme for natural gas pipelines, federal regulation for oil pipelines is thus far inadequate," the letter continues. "This has created widespread uncertainty among members of the Nebraska Legislature regarding Nebraska's rights and responsibilities in the complex arena of pipeline regulation as we have wrestled with the Keystone [XL] pipeline over the past year."

Meanwhile, in a related matter, 34 U.S. House Democrats signed on to a June 1 letter penned by fellow Rep. Steve Cohen of Tennessee that asks the State Department to specifically drill down on a half-dozen Keystone XL issues, including an analysis of the impact of cumulative greenhouse gas emissions during a 50-year lifecycle span.

"In addition to the many concerns that members of Congress have expressed, the Environmental Protection Agency (EPA) has articulated significant concerns, many of which have yet to be addressed," the representatives wrote to Clinton and EPA Administrator Lisa Jackson.

"When the EPA reviewed the draft [environmental impact statement] last year, they found the assessment to be inadequate and asked that a new EIS be conducted. In fact, EPA gave the draft EIS its lowest possible rating. After reviewing the [supplementary draft] EIS, we still do not believe that the State Department has sufficiently addressed EPA's concerns."

Few Teeth in New Cornhusker Law

Nebraska state Sen. Ken Haar, a left-leaning Democrat who represents a district near the state capital of Lincoln, wrote the letter to Clinton the day before the state's legislative session wrapped up for the year.

Advocates are convinced Haar could have gathered more signatures if he hadn't been rushed to send the correspondence to the nation's capital before state legislators scattered in separate directions last week. Under the rushed circumstances, he was joined by Fulton, a conservative Lincoln-area Republican; Coash, a moderate Lincoln-area Republican; and Dubas and Sullivan, both conservative Democrats from rural regions.

"The point is that this covers the political spectrum," Ken Winston, policy director with the Nebraska Sierra Club, told SolveClimate News in an interview. "Fulton usually fights Haar tooth, claw and nail on abortion and other social issues, but they're on the same side with this pipeline."

May 25 also was the day the states single legislative body — where each of the 49 members has the title senator — voted to pass a watered-down version of an oil pipeline reclamation bill. Essentially, all the measure delivers is a guarantee that a landowner's property will be "restored" after a pipe is installed underground.

"It's not a significant piece of legislation," Winston said about L.B. 629, which Sullivan sponsored. "It's not even clear that the type of soil that exists in the sandhills can be restored."

TransCanada maintains that pipeline liability legislation is not only unnecessary but also might conflict with parts of the U.S. Constitution regarding interstate commerce, company spokesman Shawn Howard told SolveClimate News in an e-mail response to questions.

"We are already liable for pipeline-related issues," Howard said, adding that such "responsibility is already confirmed with federal legislation."

Can Nebraska Legislators Recover in 2012?

Originally, what was touted as the Hazardous Liquid Pipeline Reclamation and Recovery Act would have required pipeline operators to establish a trust fund for landowners to cover environmental damages. The idea was to mimic South Dakota's strict liability statute. But that section was stripped away as a compromise to keep the bill from languishing in the Natural Resources Committee.

As well, Winston and other watchdogs had high hopes for a couple of other pieces of legislation that never emerged from that same committee this year. One, they supported the idea of granting the already-existent Public Service Commission the authority to issue permits for oil pipelines. Two, they wanted the state to spell out financial insurance requirements as well as liability, cleanup and siting standards for pipeline builders so landowners would be protected in the case of leaks or spills or if the pipeline was decommissioned or abandoned.

"I don't know whether the State Department would give any additional time," Winston said about Haar's request. "And even if the Legislature did have the time, could they pass any legislation? A whole bunch of this ought to be addressed but its questionable as to whether they would be able to do it or not, even if there’s building public sentiment that something ought to be done.

"The longer this issue is out there, the more opposition there seems to be," he continued. "People are saying, this whole pipeline idea is crazy. Why do we want to do this?"

Lincoln Forum Promotes Keystone XL

Several days after his colleagues mailed their letter to Clinton, Republican state Sen. Jim Smith spoke out in support of the jobs and economic boost that Keystone XL has the potential to provide to Nebraskans.

The freshman legislator was a speaker at a June 1 pro-pipeline forum organized by the Consumer Energy Alliance at a hotel in downtown Lincoln. The Houston-based alliance bills itself as a nonprofit, nonpartisan organization with 160-plus affiliates that include energy consumers and producers and tens of thousands of consumer advocates. Alliance employees invited the press to attend the gathering or listen in via a phone connection.

In addition to Smith, other panelists on the agenda included Andrew Black of the Association of Oil Pipe Lines, Richard Moskowitz of the American Trucking Association, Ron Kaminski, a local representative of the Laborers International Union of North America, and Barry Russell of the Nebraska Chamber of Commerce.

"No major project comes without risk," said Smith, a member of the Natural Resources Committee. He added that he felt assured that Alberta-based TransCanada, which is proposing to build Keystone XL, would do so in a safe and environmentally responsible manner because the company understands Nebraska’s ecologically sensitive geography.

"TransCanada ... was more than able to satisfy my concerns that they have the interest of Nebraska at heart."

Smith, who said he has 25 years of experience in the natural gas industry, owns a heavy construction equipment business in the Omaha area.

He told listeners he was confident that the construction of Keystone XL would provide jobs for Nebraskans and deliver energy independence to the state and the nation. He also emphasized how proud he was that lobbyists and legislators collaborated to craft L.B. 629, the right-of-way reclamation bill.

As it stands now, almost 300 miles of the proposed 36-inch pipeline is destined to be buried four feet below 645 tracts of private land in 14 Nebraska counties. TransCanada has evidently reached easement agreements with most of the roughly 470 property owners along the route.

House Democrats Lay Out Six Specifics

While the forum was proceeding in Lincoln, federal legislators such as Reps. Earl Blumenauer of Oregon, Jay Inslee of Washington, Peter Welch of Vermont, Keith Ellison of Minnesota and John Lewis of Georgia were sending their letter to Clinton and Jackson and requesting a face-to-face meeting with State Department officials.

Most, if not all, of the 35 Democrats are not from the states directly impacted by Keystone XL. If built, the pipeline's six-state U.S. portion would stretch 1,375 miles through Montana, South Dakota, Kansas, Nebraska, Oklahoma and directly to the oil refineries of Texas.

"Given the significant criticism the State Department's environmental reviews have garnered, we encourage the Department of State to exercise due diligence and take the requisite time to adequately address all of the issues listed above," the legislators wrote.

Their list of six specific demands concerning the Keystone XL pipeline include asking the State Department to:

• Expand the analysis of the cumulative greenhouse gas emissions impacts from 20 years to the pipeline's 50-year lifetime. Though the revamped version of the environmental impact statement acknowledged that such emissions are higher than conventional oil, the State Department seemed to dismiss those emissions as inconsequential.

• Collaborate with the Department of Energy to assess the need for the pipeline and how permitting aligns with President Obama’s goal to reduce U.S. oil imports.

• Analyze reasonable alternate routes for the project that are shorter and avoid ecologically fragile areas such as the Ogallala Aquifer and Nebraska’s Sandhills region.

• Work with the Department of Transportation to conduct a technical safety review of the risks of pipelines carrying diluted bitumen.

• Cover the environmental justice angle by studying the impacts of the project on minority and low-income populations.

• Provide at least 120 days for public review and organize field hearings in each of the six states that are directly affected.

During a Wednesday news media briefing, a State Department official defended his agency’s environmental review process of the proposed pipeline as "very stringent," according to a transcript of the event.

"They're looking at all the various impacts on the environment," spokesman Mark Toner said.

The letter from Congress comes on the heels of news reports that the Canadian federal government suppressed oil sands emissions data. Government officials acknowledged in late May that they deliberately excluded data indicating a 20 percent increase in pollution from the country's tar sands mining and production operations in 2009. That information was left out of a recent 567-page report on climate change that the government was required to submit to the United Nations.

TransCanada Takes Issue With Letter

TransCanada disputed what the House Democrats wrote in their letter about the higher emissions of heat-trapping gases from Canadian tar sands oil.

Howard, the company spokesman, said it was inaccurate to compare emissions from Alberta heavy crude oil to blends of heavy and light crude used in the United States. TransCanada maintains that heavy crude from Alberta's oil sands has similar chemical composition and associated emissions as that of oil from Mexico, Venezuela and California.

He also said that the diluted bitumen currently pumped through the Keystone pipeline is not a new or different product. Research by conservation organizations has revealed that diluted bitumen is more corrosive to pipelines and more difficult to clean from waterways and landscapes.

Where Keystone XL Stands

Due to the international nature of Keystone XL, Clinton's State Department team is tasked with reviewing TransCanada's request for a presidential permit required to cross the U.S.-Canadian border. The Canadian National Energy Board approved its portion of the project in March 2010.

When the State Department released the revamped version of its Keystone XL environmental evaluation in mid-April, the timeline seemed to indicate Clinton would be making a final decision sometime before December.

TransCanada already operates phase one of the project, simply called Keystone. Last June, that  pipeline, which was two years in the making, began carrying heavy crude oil from Alberta's tar sands to its southern terminus in Cushing, Okla., and its eastern terminus in Patoka, Ill.

That pipeline, according to records compiled by green organizations, has experienced 12 spills thus far. The latest one occurred in Bendena, Kansas on May 29. That spill of 50 gallons of crude oil follows a May 7 spill of at least 16,800 gallons of crude (400 barrels) in Sargent County, North Dakota.

Howard, the TransCanada spokesman, told SolveClimate News that Keystone was issued a U.S. presidential permit after a 23-month review. He added that if Keystone XL receives a permit by the end of 2011, it will have been in the regulatory and review process for close to 41 months.

"Keystone XL pipeline has undergone one of the longest and most extensive reviews for a pipeline of this nature," Howard said. "The Department of State has been doing a thorough review, as they should, and have consulted with more than 10 federal agencies throughout this process. A robust, objective and extensive review has taken place."

For Keystone XL, the pipeline giant TransCanada has proposed building and operating infrastructure designed to pump up to 900,000 barrels of heavy crude daily.

It has the potential to double  — or perhaps triple — the amount of diluted bitumen flowing to this country from its northern neighbor, though critics say it likely won’t be needed until 2025 or 2030. Between 2000 and 2010, U.S. imports of diluted bitumen grew five-fold from 100,000 to 500,000 barrels per day. That number could balloon to 1.5 million barrels per day by 2019.

Protecting Nebraska’s Twin Jewels

Haar, the Nebraska state legislator who wrote the May 25 letter to Clinton, was caught off guard when U.S. Rep. Lee Terry, a seven-term Republican who represents the Omaha area, recently introduced legislation requiring the Obama administration to give a "yes" or "no" to Keystone XL by Nov. 1.

Terry's bill, the North American-Made Energy Security Act of 2011, has the backing of Rep. Fred Upton, the Michigan Republican who chairs the influential Energy and Commerce Committee. Members of the Energy and Power Subcommittee debated the pros and cons of the legislation during a contentious congressional hearing last week.

In his most recent letter, Haar emphasizes that state legislators need additional time to tackle pipeline issues such as siting and routing; eminent domain; liability; emergency response; and permitting and oversight. Back in January, Haar and 20 other senators wrote a letter to Clinton urging the State Department to issue a supplemental draft environmental impact statement.

The state legislators point to a six-page memo from the Congressional Research Service as proof that they — not federal authorities — have the power to regulate and route oil pipelines in the Cornhusker State.

Environmental advocates didn't uncover the federal document, dated Sept. 10, 2010, until March, as reported by SolveClimate News. U.S. Rep. Lee Terry, the same Republican pressuring the Obama administration to meet an arbitrary deadline on Keystone XL, is the one who posed the initial question to the federal researchers. The service, part of the Library of Congress, helps federal lawmakers by providing comprehensive legislative analysis.

"Nebraska is home to twin jewels — the Sandhills and the Ogallala Aquifer," Haar wrote in his May letter. "As the largest aquifer in the United States ... the Ogallala Aquifer has an immense strategic value."

The letter refers to the Sandhills as ancient dunes that are one of the nation’s most delicate natural formations and habitats.

"TransCanada plans to run its proposed pipeline through a part of the Sandhills where the Ogallala Aquifer is both deepest and closest to the surface, and most vulnerable to contamination," the letter continues.

Suite of Green Promises to Carry On

Winston, of the Nebraska Sierra Club, said he is encouraged that legislators and activists from outside the pipeline region have adopted Keystone XL as a cause.

It only amplifies their arguments, he emphasized, when the issue is resonating in places of electoral significance such as California and New York.

"We're not going away and we're going to keep fussing," Winston vowed. "All of it is intertwined. "There's a lot more we can do and a lot more we intend to do."

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