Citizen Action Monitor

US Appeals Court rejects request to grant temporary injunction on southern half of Keystone XL

Decision puts TransCanada’s financial health ahead of ecologically sane future

No 878 Posted by fw, October 15, 2013

“Forget the politicians. The politicians are put there to give you the idea that you have freedom of choice. You don’t. You have no choice. You have owners. They own you. They own everything. They own all the important land. They own and control corporations. They’ve long since bought and paid for the Senate, the Congress, the state houses, and city halls. They got the judges in their back pocket. And they own all the big media companies so they control just about all the news and information you get to hear. They got you by the balls.”George Carlin, The American Dream

Read the original article by clicking on the following linked title. Or read the version below with intellectually added value of subheadings and text highlighting, but without the accompanying photos.

US Court: TransCanada’s Keystone XL Profits More Important than Environment by Steve Horn, DeSmogBlog, October 13, 2013

Appeals Court rejects request to grant temporary injunction on southern half of Keystone XL

In a major ruling that’s flown under the radar, the U.S. Court of Appeals for the Tenth Circuit – based in Denver, Colorado – decided not to grant the Sierra Club and Clean Energy Future Oklahoma a temporary injunction on the construction of the southern half of TransCanada’s Keystone XL tar sands export pipeline

The Court’s decision hinged on an “injury” balancing test: Would TransCanada be hurt more financially from receiving an injunction? Had it lost, it would be stuck with one until Sierra Club, et al receive a U.S. District Court decision on the legality of the U.S. Army Corps of Engineers’ decision to grant TransCanada a Nationwide Permit 12 (NWP 12) for construction of what’s now called the Gulf Coast Pipeline in February 2012. 

Or would ecosystems suffer even greater and potentially incalculable damage from the 485-mile, 700,000 barrels per day pipeline crossing 2,227 streams?

In a 2-1 decision, the Court sided with TransCanada, and by extension, the U.S. Army Corps of Engineers. The Court ruled, “the threatened environmental injuries were outweighed by the financial harm that the injunction would cause TransCanada.”

Presiding judges were Bush appointees

Commenting on the case brought by Sierra Club, et al, Judge Jerome A. Holmes and Judge Paul J. Kelly, Jr. – appointees of President George W. Bush and President George H.W. Bush, respectively – shot down the arguments sharply.

Holmes and Kelly ruled that Sierra Club, et al failed to show how the pipeline will have a significant environmental impact despite the fact it’s been deemed a “fuse to the biggest carbon bomb on the planet” by retired NASA climate scientist James Hansen. 

Construction of southern half of KXL nearly complete – dilbit will flow in early 2014

Construction of Keystone XL’s southern half – subject of significant grassroots activism by the Tar Sands Blockade and others – is now nearly complete. Tar sands dilbit is slated to begin to flow through it in early 2014. 

Nationwide Permit 12 is “New Normal” for Tar Sands Pipeline Approval — avoids EPA permit process

After protestors succeeded initially in delaying Keystone XL, Big Oil has chosen a “new normal” stealth approval method: the non-transparent NWP 12. 

This avoids the more strenuous National Environmental Protection Act permitting process overseen by the Environmental Protection Agency (EPA), which requires public hearings and public comments for major federal pipeline projects. NEPA compels the EPA to take comments into account in response throughout the Environmental Impact Statement phase, allowing robust public participation in the process.

Sierra Club Staff Attorney Doug Hayes explained in an interview with DeSmogBlog that NWP 12 is for utility projects with up to a half an acre of stream or wetland impacts, and has never been used for tar sands pipelines before Keystone XL’s southern half.

Obama approved southern half of KXL by executive order

The southern half of the pipeline was approved via Executive Order by President Barack Obama in March 2012, directly after Obama gave a speech in front of a Cushing, OK pipeyard.

TransCanada used legal loopholes to evade nationwide permit process, says Sierra Club lawyer

“The Corps is abusing the nationwide permit program. Nationwide permits were intended to permit categories of projects with truly minimal impacts, not tar sands oil pipelines crossing several states,” said Hayes. 

Utilizing tricky legal loopholes, TransCanada used NWP 12 to push through Keystone XL’s southern half in February 2012, calling each half acre segment of Keystone XL’s southern half a “single and complete project.” The Army Corps of Engineers agreed despite the fact that TransCanada refers to the pipeline at-large as the “Gulf Coast Pipeline project.”

“What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid environmental review,” Hayes explained. “In this case, there were 2,227 crossings of federal waterways, so the Corps has treated the Gulf Coast Pipeline as 2,227 ‘single and complete projects,’ each of which qualifies under NWP 12.”

Why, I asked Hayes? 

“The Corps artificially treats these massive pipelines as thousands of individual projects so as to qualify under NWP 12 and avoid NEPA compliance.”

NWP 12 has also been utilized by Enbridge for the Flanagan South Pipeline, a 600-mile, 600,000 barrels per day pipeline set to shuttle tar sands crude from Flanagan, IL to Cushing, OK, crossing over 2,000 streams. That pipeline is scheduled to begin operations in mid-2014, demonstrating how NWP 12 is the “new normal” way to fast-track domestic tar sands pipelines. 

Majority opinion avoided addressing pivotal legal question, focusing instead on cost issues

Perhaps the biggest irony of the Appeals Court decision is that Judges Holmes and Kelly barely grappled with the central issue of the legal challenge to begin with: using NWP 12 rather than going through the NEPA process. 

“The majority opinion avoided addressing the legal questions that are central to this lawsuit – whether the Corps violated the law in permitting this pipeline – and instead it was based on how much money a delay in construction would cost TransCanada,” said Hayes. 

Dissenting Judge cites violation of environmental protection laws and risk of “real and significant harm”

Though Judges Holmes and Kelly stayed mum about these issues, dissenting U.S. District Court for the District of Colorado Judge William Martinez – an Obama appointee – did not, pulling no punches in doing so. 

“Given the totality of the circumstances…I believe the…Gulf Coast Pipeline required a comprehensive NEPA analysis,” Martínez wrote.

“There are also no specific findings in support of the Corps’ conclusion that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact. The failure to consider the cumulative effects of all of the water crossings involved in the Gulf Coast Pipeline violates the terms of NWP 12, and, therefore, the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline violated the law.” 

Though Judges Holmes and Kelly grappled with the issue of water crossings – belittling the amount of water Keystone XL’s southern half would cross over – Martínez said it’s about much more than just water. 

There is “real and significant harm caused by the actual construction of the pipeline, including the clearing of trees and vegetation, removing topsoil, filling wetlands, building access roads, and clearing an eighty-five foot construction right-of-way for the length of the pipeline,” he stated.

Hayes agreed with this assessment, pointing to examples of things the Judges simply ignored in their assessment. 

Regarding risks, Sierra Club points to Michigan pipeline spill with cleanup costs exceeding $1B

“[T]he court’s balancing test ignored the host of environmental impacts associated with this pipeline, including the risks of tar sands oil spills,” said Hayes.

“Remember that the 2010 tar sands pipeline spill in Michigan is still being cleaned up, and so far has cost over a billion dollars. It’s a bit of a Catch-22 to say that this is all just about a few acres of wetlands loss, when the whole point of this lawsuit is that the Corps avoided analyzing any of the pipeline’s environmental impacts as required by NEPA.”

Lastly, Martínez put the onus on TransCanada for its economic decision-making.

“TransCanada chose to incur its economic harm by entering into contracts for services before the Gulf Coast Pipeline was approved, even in light of the controversial nature of the Pipeline,” said Martínez (emphasis his).

U.S. District Court decision forthcoming, activism persists 

Sierra Club, et al now await a summary judgment from the U.S. District Court for the District of Colorado on whether Keystone XL failed the dictates of NEPA. It’s a key decision, Hayes says, because “a ruling in our favor could prevent the Corps from doing this in the future.”

While they await this lower court judgment, activists continue efforts to fend off these pipeline projects. 

US executive and judicial negligence for failing to protect people and ecosystems

“This decision yet again demonstrates why direct action is necessary. The permitting process for Keystone XL’s southern leg was illegal, yet regulators, inspectors, Obama, and the courts are failing to do what is necessary to protect the people and ecosystems threatened by this toxic pipeline,” said Ron Seifert, a Tar Sands Blockade spokesman. 

People must rise up and take defense of environment into their own hands

“If all the branches of government are so helplessly captured by industry that they will do nothing to stave off climate change, then the people must rise up and take the defense of the environment into their own hands.”

FAIR USE NOTICE: This blog, Citizen Action Monitor, may contain copyrighted material that may not have been specifically authorized by the copyright owner. I claim no ownership of such materials. Such material, published without profit, is made available for educational purposes, to advance understanding of human rights, democracy, scientific, moral, ethical, and social justice issues. It is published in accordance with the provisions of the 2004 Supreme Court of Canada ruling and its six principle criteria for evaluating fair dealing.

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