Aberdeen, S. D. —A Canadian company that is waiting for a federal permit to build an oil pipeline through the High Plains has used a technicality in U.S. environmental regulations to begin removing an endangered species—the black and orange American burying beetle—from the proposed route.
A spokesman for Alberta-based TransCanada said the company has done nothing wrong. The beetles were removed as part of TransCanada's "commitment to protecting the environment and endangered species along the Keystone XL route," Shawn Howard told InsideClimate News. According to Howard, the beetle is the only endangered species identified along the pipeline's proposed route from Alberta to the U.S. Gulf Coast.
But pipeline opponents say that by moving beetles from the Nebraska sandhills and mowing miles of grass where the insects once lived, TransCanada has illegally begun construction on the project. Because the pipeline would cross an international border, the U.S. State Department is in charge of the permitting process. The agency is expected to make its decision by the end of the year.
On Wednesday three environmental groups filed a lawsuit in a federal court in Omaha against the State Department and U.S. Fish and Wildlife Service asking that the beetle removal work be stopped.
Noah Greenwald, the endangered species director at the Center for Biological Diversity, said the suit was filed under the National Environmental Policy Act (NEPA). NEPA makes it clear that "when you're in the process of considering a project, you can't do any work before you have a permit," Greenwald said. "By already doing work on the pipeline route, [TransCanada is] essentially bullying the process."
The Center for Biological Diversity filed the lawsuit with Friends of the Earth and the Western Nebraska Resources Council.
Howard said TransCanada hasn't done any construction. "We have moved beetles and mowed some grass to assure the protection of the American Burying Beetle," he said in an email to InsideClimate News. "Mowing – not construction. And before any work was done, we received permission from the landowners to conduct these surveys."
The timing of TransCanada's beetle-removal effort, which began in August, is critical to the company's construction schedule. According to Kyle Graham, a Fish and Wildlife Service biologist, the beetles can be relocated only between August and October, when they emerge above ground. If TransCanada had waited for the State Department to approve the project before removing the beetles, construction could have been delayed by nearly a year.
"It's essentially for their convenience...so they can start as soon as they have a permit," Greenwald said.
Although TransCanada has been working on the beetle removal project for several months, it didn't attract much attention until this week, when the lawsuit was filed. Friends of the Earth recently posted aerial photos of the mowed area on its website.
News of the beetle removal comes at a particularly delicate time in the pipeline project's evolution.
The State Department is scheduled to hold its final public hearing on the project today (Friday), in Washington, D.C. And the pipeline has become an increasingly contentious issue in Nebraska, where the beetles are being removed.
The Keystone XL would be the first oil pipeline built in the Nebraska sandhills, an ecologically sensitive area that sits above the Ogallala aquifer, which provides most of the state's drinking and irrigation water. Even some Nebraskans who support the project, including Rep. Gov. Dave Heineman, think it should be rerouted away from the sandhills. On Monday, state Sen. Annette Dubas announced she had written a bill that would give Nebraska the power to take control of the pipeline's in-state route. On Wednesday, Nebraska's Speaker of the Legislature announced that state representatives will meet with TransCanada next week.
Ken Winston, a policy advocate with the Sierra Club, applauded the effort, but believes that landowners should also have a seat at the table. He said TransCanada's rush to remove the beetles reveals the company's "presumptuous nature...[they're trying] to create a mindset that this is a done deal."
John Hansen, president of the Nebraska Farmers Union, said the landowners his group represents "are obviously not happy" that the beetles are being removed.
"Everything we've seen about TransCanada is [they] try to push as hard and as fast as they can," said Hansen, whose group wants the pipeline rerouted. "Their motto seems to be it's better to ask for forgiveness than to ask for permission."
A State Department spokesperson said the agency cannot comment on issues related to the pending lawsuit.
TransCanada Relies on Biologist's Research Permit
The Fish and Wildlife Service did not give TransCanada a permit to remove the beetles. Instead, the company is working under the supervision of Wyatt Hoback, an entomologist from the University of Nebraska Kearney, who has a research permit to study the insects. Fish and Wildlife gave Hoback the permit in 2001 and renewed it in 2010.
Howard, the TransCanada spokesman, said Hoback has advised the company on beetle ecology and conservation measures.
"We did not hire him, however, we did reimburse him for his time and expenses in all these endeavors."
Mike George, Nebraska Field Supervisor at U.S. Fish and Wildlife, said the arrangement between Hoback and TransCanada did not violate his agency's regulations.
George said Hoback's permit is "a pretty broad permit in that it allows [Hoback to] trap and relocate beetles." He said it places no restrictions on who Hoback can work with.
"I don't know what [Hoback's] working agreement is with [TransCanada]," George said. "I know he has one."
Hoback did not return requests for comment. Curt Carlson, a spokesman from the University of Nebraska Kearney, said Hoback is a well-known expert on the American burying beetle, so it makes sense that TransCanada would seek his help.
George said Hoback has shared his research with the agency and that his beetle surveys contributed to the State Department's Final Environmental Impact Statement on the pipeline project. "We've learned a lot about the beetle based on his work," George said.
Once beetles are removed, state regulations require that their former habitat be mowed so the insects don't wander back into the project's path. Michelle Koch, Environmental Analyst Supervisor at the Nebraska Game and Parks Commission, said mowing is a "conservation condition" that reduces overall impacts on the beetle.
Howard said TransCanada's current plans call for mowing 80-90 miles though the sandhills. "The work is done except in limited areas where landowner permission was not available," he said. "Any work that we could not get done now will be completed before construction takes place."
George said the width of that path—about 110 feet—is similar to that of other construction projects that have been done in the region. "The big difference is [the length]—it basically goes from the Nebraska/South Dakota line to the Nebraska/Kansas line."
Ecological Impacts "Minimal"
George said the overall ecological impact of mowing the grass and removing the beetles would likely be "minimal." Graham, the Fish and Wildlife biologist, compared the mowing to the hay harvesting that regularly takes place in the region's ranches. If the route were changed, he said, the grass would come back after one growing season.
But the pipeline's opponents say that even if no permanent damage has been done, TransCanada has defied the principle of U.S. law.
TransCanada's work in the sandhills has "made a mockery out of that public process," said Greenwald from the Center for Biological Diversity, "because they're supposed to be considering other options—and maybe not even building the pipeline at all."