Foes of Keystone XL Begin New Legal Battle Against State Department

Petition filed by 16 green groups outlines a new basis for challenging the State Department's review of the project, as well as hints at a future lawsuit.

Secretary of State John Kerry addresses reporters during the North American Trilateral Ministerial in Washington, D.C., on Jan. 17, 2014. Credit: State Department

Just as the State Department is on the verge of releasing its final environmental impact statement on the Keystone XL pipeline, 16 environmental groups have demanded that the department expand its scope to include at least one other pipeline as well.

In other words, their Jan. 29 petition said, the department should go back to the drawing board.

The green groups said the State Department could not realistically account for the effects of TransCanada's Keystone XL project on global warming without taking into account the proposed expansion of Enbridge's Alberta Clipper line—a second pipeline project that would also carry hundreds of thousands of barrels a day of high-carbon tar sands crude from Canada.

MORE: Map: Another Major Tar Sands Pipeline Seeking U.S. Permit

The petitioners include groups with long experience challenging federal agencies in the courts under the National Environmental Policy Act, or NEPA, which governs environmental assessments of major federal actions.

Their filing signaled—not for the first time—that they might sue if the final impact statement reaches the same conclusions as its first draft, issued in March 2013. That draft contended that the Keystone line would not result in significantly higher emissions of carbon dioxide, the main global warming pollutant.

The final environmental review is widely expected to be released on Friday. 

The environmental groups, including the Sierra Club, the National Resources Defense Council, Friends of the Earth, the Center for Biological Diversity, the National Wildlife Federation and 11 others, have previously filed comprehensive objections to the State Department's first draft.

This time they outlined a new basis for challenging the State Department's approach.

NEPA, they said, requires that when a federal agency has more than one similar action or decision before it, the government must consider the "cumulative impact" of them all together.

And, they pointed out, the State Department is currently reviewing just such a second case—whether to approve Enbridge's application to expand its pipeline.

Under the law, the two should be considered in tandem, the petition said—not one after the other, and certainly not by waving TransCanada's application through without any meaningful discussion of Enbridge's.

"Neither the original Alberta Clipper project nor the proposed Alberta Clipper expansion is listed or discussed anywhere in the cumulative impacts assessment," the petition said.

The groups called that omission a fatal flaw in the State Department's Keystone review, which was well under way when the separate Alberta Clipper review was just getting started.

They said the NEPA law requires a new review "that considers the cumulative impacts of Alberta Clipper and other reasonably foreseeable pipelines," such as a project that would reverse the direction of a line that cuts across New England into Canada.

NEPA requires this cumulative test in order to stop agencies from approving one environmentally damaging project after another, each time on the grounds that no single project does much harm. The petition cites several precedents in which the courts have upheld the principle that similar cases ought to be lumped together.

For the groups to raise this new argument so late in the game suggests that they fear the State Department is not going to back down from its initial analysis when it releases its final version.

Sean Howard, a spokesman for TransCanada, called the petition "another attempt to try and delay the review process by the paid professional opponents of Keystone XL."

He noted that in 2007 and 2008, when TransCanada's original Keystone line and Enbridge's original Alberta Clipper line were subjected to overlapping reviews, the State Department "didn't consider them together and no one took that issue to court when the two projects were renewed and approved separately."

But that was under the Bush administration, and back then the reviews did not focus on the question of climate change, which the Obama administration has called a crucial test on Keystone XL. Cumulative emissions of carbon dioxide from the tar sands are now at the heart of the decision on the fate of the pipeline.

In last year's draft, the State Department reasoned that Canada's tar sands expansion and the increased carbon dioxide emissions that would result, would be inevitable with or without Keystone XL, because the industry would find one way or another to get its fuel to market—either via other pipelines or by rail.

The environmental groups' latest petition is aimed squarely at this reasoning.

"The Department cannot plausibly argue that other infrastructure projects are inevitable, and that it is powerless to affect the rate of tar sands development in Alberta, when it is simultaneously deciding whether to approve the second-largest cross-border tar sands pipeline proposal," they wrote.

In addition, they said, it is harder to believe that shipping tar sands products by rail is a credible alternative to pipelines if the railroads might have to carry the volume of two pipelines instead of just one.

The full petition:



Facebook Twitter Google Plus Email LinkedIn RSS RSS Instagram YouTube