State Department Draws Fire for Tar Sands Pipeline Detour

If any other federal agency did this, "there would be no question it would be illegal," one expert said.

Enbridge plans to swap the contents of its Alberta Clipper and Line 3 pipelines for 17.4 miles around the U.S.-Canada border to avoid a new permit. Credit: Paul Horn, InsideClimate News

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A Canadian pipeline company’s plan to bring more tar sands oil into the United States without waiting for a federal permit is drawing resistance from environmentalists who say it’s skirting the law.

Last week, 18 green groups sent a letter to the U.S. State Department asking the agency to “take immediate action to halt this illegal increase in tar sands crude oil imports until it completes its ongoing environmental review.” Rep. Keith Ellison (D-Minn.) expressed similar concerns in a separate letter to the agency

The issue highlights uncertainties in the way international pipelines are regulated, and the growing opposition to tar sands oil, which releases 17 percent more greenhouse gases than conventional crude and is harder to clean up when it spills into water. 

The pipeline in question is the Enbridge-owned Alberta Clipper. It delivers 450,000 barrels of tar sands oil per day from Hardisty, Alberta, to Superior, Wisconsin, where it’s shipped through other pipelines to refineries in the Midwest and South. The Alberta Clipper carries the same type of oil that would flow through the proposed Keystone XL.

Two years ago, Enbridge applied for a State Department permit to expand the pipeline’s capacity to 800,000 barrels per day. The permit is necessary because the pipeline crosses an international border, and the review process includes an analysis of environmental impacts.

In June Enbridge announced that while it waits for the agency’s decision it would temporarily boost capacity from 450,000 to 570,000 barrels per day by diverting the oil through a separate Enbridge pipeline, Line 3. That line, which carries conventional crude oil, runs parallel to the Alberta Clipper route and has a cross-border permit issued in the 1960s.

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Enbridge is building connections between the pipelines so it can swap their contents over a 17.4-mile segment of the border crossing. Once the oil reaches the U.S., the tar sands oil will move back into the Alberta Clipper.

Enbridge’s plan is technically feasible because there’s unused capacity on Line 3, and because the company is adding pumping stations to boost flows along the Alberta Clipper. 

From Enbridge’s perspective, “the challenge is not an engineering challenge, it’s a permit challenge”—one that it has decided to solve through “legal gymnastics,” said Jim Murphy, senior counsel for the National Wildlife Federation. 

Alexandra Klass, a professor at the University of Minnesota Law School, said Enbridge’s strategy isn’t surprising. “This happens in environmental reviews all the time. You seek approval for smaller pieces, which on their own don’t seem like they’ll have a big environmental impact. But considered cumulatively, they do.”

In an emailed statement, Enbridge spokeswoman Terri Larson said using Line 3 allows the company to meet customer demand while the State Department reviews the original application—”a process that is taking longer than anticipated.” 

The State Department appears to have accepted Enbridge’s position that the pending permit applies only to the short section of the Alberta Clipper that crosses the border. In July, an agency staffer said in a letter that “Enbridge’s intended changes to the operation of the [Alberta Clipper] pipeline…outside of the border segment do not require authorization from the U.S. Department of State.”

“If this were any other federal agency attempting to do this, there would be no question it would be illegal,” said Pat Parenteau, a Vermont Law School professor who closely follows oil pipeline issues. “It remains to be seen whether the State Department can get away with this. But it’s an obvious way to piecemeal the project and avoid considering the true impacts of the project.”

Murphy, the National Wildlife Federation lawyer, said Enbridge’s plan would make the environmental review “essentially meaningless.” He’s particularly concerned about how it will affect the climate analysis. Enbridge’s original application asked for a permitted capacity increase from 450,000 to 800,000 barrels per day. If the agency uses 570,000 barrels per day as the baseline for assessing the proposed changes, it would end up reviewing a smaller emissions increase that masks the project’s true carbon footprint, he said. 

Given that President Obama has made climate impacts a key test of whether he will approve the Keystone XL, “it’s disappointing that the State Department continues to not take seriously the climate policy implications behind these pipelines,” Murphy said.

The State Department didn’t respond to questions about the Alberta Clipper review. The agency is currently taking public comments on the scope of the environmental analysis. 

Murphy said his organization will consider legal action if the State Department allows Enbridge’s Line 3 strategy to proceed—but he hopes the agency will resolve the issue by revoking its approval of the Line 3 swap.

Parenteau said the outcome of a lawsuit would be unclear. While the environmentalists have “common sense” on their side, the courts tend to tread lightly on matters of foreign relations, he added. In addition, the State Department permitting process is based on a presidential executive order, which Parentau called “an unresolved area of the law right now.” 

“This,” he said, “is sort of cutting-edge law.”