U.S. Judge Allows Preliminary Work On Keystone XL Pipeline While Construction Blocked

by Kim Boateng Posted on December 1st, 2018

Great Falls, Montana : Judge Brian Morris of the US District Court for the District of Montana said in a hearing on Wednesday that pre-construction activities may continue for the Keystone XL Pipeline. Morris originally ruled this month that construction on Keystone XL must be halted to allow for further studies to ensure environmental safety.

Construction of the Keystone XL oil pipeline was initially proposed by TransCanada, where oil would be shipped from Alberta to Nebraska via numerous states. The pipeline, which would connect to existing pipelines, immediately faced backlash due to the numerous environmental consequences.

The hearing occurred in response to a motion filed by TransCanada, which sought clarification on whether Morris’ ruling included pre-construction activities. The activities include building camps for workers, discussing logistics with landowners and hauling pipe. According to TransCanada, some of these operations have already been underway for months and are general planning/administrative work.

During the telephone hearing, Morris agreed that only certain activities could proceed, but deferred on others until briefs were submitted on the issue. Activities such as hauling pipe, surveying land and transportation planning were among those deferred for a later decision. Allowed preliminary work includes project engineering, administrative actions regarding compliance with state and local rules, acquiring land rights and other planning endeavors.

EARLIER : U.S. Judge Blocks Keystone XL Pipeline Construction

TransCanada’s $10-billion Keystone XL pipeline project has suffered another setback after a U.S. federal judge blocked its construction to allow more time to study the potential environmental impact.

U.S. District Judge Brian Morris of the District of Montana issued an order Thursday blocking construction of the $10 billion Keystone XL Pipeline until further environmental analysis is conducted.

Judge Brian M. Morris criticized the Trump administration for its failure to provide a “reasoned explanation” for its position about the pipeline’s impact on the climate. Construction could have begun as early as next year.

“The Department instead simply discarded prior factual findings related to climate change to support its course reversal,” Judge Morris wrote in his decision.

The decision comes as TransCanada is preparing to build the oil pipeline beginning in northern Montana, with pipe being shipped to the state by train and trucked to locations along the line.

Environmental groups that sued TransCanada and the U.S. Department of State in federal court in Great Falls called the decision to overturn the Trump administration-issued permit a landmark ruling.

In his decision, Morris said the government’s analysis fell short on:

» The effects of the current oil prices on the viability of the pipeline.

» The cumulative effects of greenhouse gas emissions.

» A survey of potential Native American resources.

» And updated modeling of potential oil spills and recommended mitigation measures.

“The Department must supplement new and relevant information regarding the risk of spills,” Morris wrote.

As for climate change, Morris noted that the department denied the permit in 2015 and relied heavily on the United State’s role in climate leadership. That was under the Obama Administration.

Then, under the Trump administration, the department approved the permit, dismissing concerns about climate change.

The Trump Administration decision approving the project noted that “there have been numerous developments related to global action to address climate change, including announcements by many countries of their plans to do so” since the 2015 decision.

Morris said that statement fell short of a factually based determination, let alone a reasoned explanation, for the course reversal.

“An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate,” Morris wrote.

The reversal required a “reasoned explanation” but instead the State Department discarded prior factual findings related to climate change, the judge said.

Keystone XL Pipeline would transport up to 830,000 barrels per day of crude oil from Alberta, Canada and the Bakken Shale Formation in Montana to existing pipeline facilities near Steele City, Neb., from which the oil would be delivered to Cushing, Okla., and the Gulf Coast.

The U.S. portion of the line would run 875 miles through Montana, South Dakota and Nebraska. The rest of the 1,200-mile line is in Canada.

About 250 miles of the pipeline would be buried across six counties in Montana beginning on the border with Canada in Phillips County. TransCanada already as begun delivering pipe to Montana in expectation of construction beginning in 2019.

The Indigenous Environmental Network, North Coast Rivers Alliance, Northern Plains Resource Council and other groups sued TransCanada and the U.S. State Department in March to block the decision to issue a presidential permit allowing construction.

“I would call it a landmark ruling because it overturns a presidential decision purporting to find that a transboundary project is in the public interest,” Stephan Volker, a Berkeley-based attorney for the plaintiffs, told the Tribune. “And Judge Morris correctly ruled it was not in the public interest because Secretary Kerry had found in a detailed ruling several years ago it was not in the public interest.”

John Kerry was secretary of state when the Obama administration denied the presidential permit for the pipeline.

A presidential permit is required when a project crosses an international boundary. The secretary of state makes a recommendation, then the president decides.

“We have never had a ruling against a president overturning a substantive finding a project is in the public interest,” Volker said. “That finding is required for transboundary projects. So it’s unique to this kind of national project that affects multiple countries.”

Dena Hoff, a Glendive farmer and member-leader of the Northern Plains Resource Council, called the ruling a victory for rule of law and common sense stewardship of land and water.

“All Americans should be proud that our system of checks and balances can still function even in the face of enormous strains,” Hoff said.

The Fort Peck tribes of Montana have opposed the current location of the pipeline crossing on the Missouri River in Valley County, Montana because they say if there was an oil spill it could taint their downstream water system.

The pipeline would cross the Milk River 1.6 miles West of Nashua, and the Missouri River just west of the mouth of the Milk. That location is 57 miles upstream from the intake of the Assiniboine and Sioux Rural Water Supply System.

TransCanada says the pipeline will be safe. At the Missouri River, the pipeline depth would be 54 feet below the lowest surveyed river elevation, and heavier-walled pipe with anti-corrosion coating would be used.

“Pipelines are the safest and most cost-effective form of overland crude oil transportation,” according the environmental impact statement that was completed on the project.

The Obama Administration, citing climate change, had denied the permit, saying it wasn’t in the national interest.

In approving the pipeline, the Trump Administration said the project would support U.S. priorities relating to energy security, economic development, and infrastructure.”

The environmental groups argued it would push the earth beyond its carrying capacity for carbon dioxide, and asked how that could be in the public’s interest.

In the same case, Morris directed the government in August to supplement the 2014 final supplemental environmental impact statement to consider another alternative route through Nebraska.

But the court had yet to decide on vacating the presidential permit granting permission to cross the international border between Canada and the United States at Montana.

Morris’s 54-page order overturns the Trump Administration’s approval of the Keystone XL Pipeline and issues an injunction preventing construction of the project.

Environmental and Native American groups that have fought the pipeline called Judge Morris’s ruling a major victory and a setback for the Trump administration’s environmental and energy policies.

“The Trump administration tried to force this dirty pipeline project on the American people, but they can’t ignore the threats it would pose to our clean water, our climate and our communities,” said Doug Hayes, an attorney for the Sierra Club, one of the plaintiffs in a lawsuit filed by environmentalist groups against the State Department and TransCanada.

President Trump said the judge’s decision to again block Keystone XL pipeline’s construction is “a disgrace,” and adds “we’re slowly putting judges in the 9th Circuit.”

Image : A protest last year in Lincoln, Neb., against the Keystone XL pipeline. The almost 1,200-mile project would connect Canada to the Gulf Coast.

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Kim Boateng

Kim Boateng

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