Big Oil Fears Keystone XL Ruling Means End of Easy Pipeline Permits
On April 15, Judge Brian Morris nullified water-crossing permits in Montana that were granted for the Keystone XL, a major setback for the long-embattled tar sands oil pipeline. The ruling came just days after Keystone XL owner TC Energy, formerly known as TransCanada, obtained billions of dollars in subsidies from the Alberta government as global oil prices plummeted.
The oil and gas industry has taken notice. Seemingly just a ruling on Keystone XL — the subject of opposition by the climate movement for the past decade — the ruling could have far broader implications for the future of building water-crossing pipelines and utility lines.
In his decision, Judge Morris cited a potential violation of the Endangered Species Act when he ordered the U.S. Army Corps of Engineers to do a deeper analysis of potential impacts to protected species. Morris required the Corps to demonstrate whether or not it could construct the pipeline without harming endangered species, such as the Pallid Sturgeon or the American burying beetle. Instead, the Army Corps “failed to consider relevant expert analysis and failed to articulate a rational connection between the facts it found and the choice it made,” Morris ruled, when the Corps gave Keystone XL the initial green light.
The original July 2019 complaint in that case — filed by Northern Plains Resource Council, Bold Alliance, Sierra Club, Natural Resources Defense Council, and Center for Biological Diversity — also argued that the Army Corps had violated the National Environmental Policy Act (NEPA) in using an obscure regulatory lever to fast-track the review process.
Known as Nationwide Permit 12, the permit only requires a short environmental analysis compared to the more robust environmental impact statement required under NEPA for other major infrastructure projects. But Morris also wrote that the decision applied not just to Keystone XL, but to all major federal projects aiming to utilize Nationwide Permit 12, calling for it to be “vacated pending completion of the consultation process and compliance with all environmental statutes and regulations.”
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Nationwide Permit 12 historically was used for small “single and complete” projects crossing water parcels half an acre in size or smaller.
But in the aftermath of protests and civil disobedience actions taken against Keystone XL, the Obama administration began using that permitting process to split pipelines into hundreds or thousands of half-acre pieces. The process was a way around the more robust and democratic National Environmental Policy Act (NEPA) regulatory process, which involves both a public commenting and public hearing phase. Nationwide Permit 12 was also used to push through the Dakota Access pipeline, as well as the southern leg of the Keystone XL, both greenlighted by President Barack Obama.
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https://www.desmogblog.com/2020/05/03/keystone-xl-future-pipeline-permits
