In the Spotlight: What the Keystone XL Supreme Court Decision Means for the Future of the KXL Pipeline

July 16, 2020

In the Spotlight: What the Keystone XL Supreme Court Decision
Means for the Future of the KXL Pipeline

Pat Handlin, WPLC Board Member

Natali Segovia, WPLC Staff Attorney

The Keystone XL (KXL) pipeline would carry tar sands oil from Alberta, Canada across 1,179 miles through Montana and South Dakota before reaching Nebraska, connecting there to an existing pipeline network to deliver crude to refineries on the Gulf of Mexico. In its path, it would cross some 20 miles of waterways. Tar sands oil is highly volatile, thicker, and more corrosive than lighter conventional crude. All of this increases the likelihood that a pipeline carrying it will leak and a spill (if detected at all) is much harder, if not practically impossible, to clean up. As we know, any pipeline will leak – it is just a question of when.

Since it was first proposed in 2008, tribes on both sides of the Medicine Line (US-Canada border) have been concerned about the immense risks that KXL poses, not only for Indigenous peoples but for non-native people, endangered wildlife, land, water, and the earth. The construction of the KXL pipeline would cause irreparable harm – not only because KXL would cross through numerous unceded territories of Indigenous nations without their consent – thus violating long-standing treaty rights and the sovereignty of Indigenous peoples, but also bring with it the desecration of sacred sites and risks of violence against women and girls connected to man camps. Wide-ranging environmental concerns impact communities beyond Indigenous nations, as the Keystone XL pipeline would cross over the Ogallala Aquifer, which supplies water to Nebraska and surrounding states in the “breadbasket” of America. Extraction alone destroys wildlife habitats, flattens Canada’s boreal forests, depletes freshwater resources, threatens the health and livelihood of indigenous peoples, and creates massive amounts of toxic waste, all the while creating three to four times the carbon pollution of conventional crude extraction and processing. Additionally, the process of refining tar sands oil produces petroleum coke, a hazardous by-product.

In 2015, after immense opposition to KXL, President Obama vetoed the pipeline indicating that the project would undercut United States efforts to fight climate change. The Trump administration subsequently reversed course by executive order in 2017, fast-tracking development and allowing KXL to move forward. State Department permitting processes overlooked tribal treaties with the federal government and permits were approved without prior consultation with the tribes. All of this was brought to a halt in federal district court in Montana on April 15, 2020 when judge Brian M. Morris suspended a nationwide permit (NWP 12) and effectively blocked further construction of the KXL pipeline and other pipelines across the country.

In May 2020, the Ninth Circuit Court of Appeals refused to stay the Montana ruling while appeals moved forward.

On July 6, 2020, the Supreme Court issued a brief ruling rejecting the Trump administration’s request to allow construction of the KXL pipeline that was blocked by the Montana district court order. At the same time, the Supreme Court stayed the portion of the Montana ruling that struck down the permit program, allowing for construction on other pipelines around the country to once again move forward.

For the time being, the Montana ruling halting construction on KXL is thus still in effect pending the final outcome of the appeals in the Ninth Circuit. Though we acknowledge the fight is not yet overand struggles against construction of KXL “man camps” and other related structures continue, since these are not blocked by the Montana ruling—we celebrate this important victory in the long road to justice.

#NoKXL #MniWiconi #HonorTheTreaties #FreePriorInformedConsent

HERE ARE THE DETAILS:

On March 25, 2020, the federal district court in the D.C. Circuit Court in Washington, D.C. issued a court order in Standing Rock Sioux Tribe vs. US Army Corp of Engineers that vacated the Army Corp of Engineers (Corps) nationwide permit “NWP 12”, which until that moment, had allowed the Dakota Access Pipeline to pass under the Missouri River and Lake Oahe. We hoped that the presiding judge in the pending cases filed in Montana against the KXL pipeline would issue a similar order.

On April 15, 2020, the federal district judge in the Montana case did issue just such an order. The judge’s order effectively halted construction of the Keystone XL oil pipeline and by revoking a key nationwide water-crossing permit, NWP 12, which had been issued by the Corps in 2017, that allowed oil and gas pipelines to cross waterways after only light scrutiny from regulators (allowing permits for activities causing “only minimal adverse environmental effects… and minimal cumulative adverse effect on the environment”). Under the NWP 12 nationwide permit, pipeline construction could proceed with the limited requirement that TC Energy, Inc. must submit a preconstruction notification (PCN) to the Corps’ district engineer before beginning a proposed activity if the activity would result in the loss of greater than one-tenth acre of jurisdictional waters.

Federal District Court Judge Brian M. Morris held that the federal Endangered Species Act (ESA) prohibits the use of any nationwide permit for activities that are likely to (1) directly or indirectly jeopardize the threatened or endangered species under the ESA or (2) destroy or adversely modify designated critical habitat for such species. The ESA and National Environmental Protection Act (NEPA) each require the Corps to consider the environmental impacts of its actions, which the nationwide permitting process failed to do. ESA and NEPA require the Corps to determine “at the earliest possible time” whether any action it takes “may affect” listed species and critical habitat. The judge’s order vacated the nationwide permit based on the Crops’ failure to abide by the requirements of the Endangered Species Act. The judge noted that the Corps’ nationwide permit shifted responsibility for compliance with various federal statutes designed to protect the environment from the Corps to the permittee in violation of the Corps’ responsibilities.

As a result of the judge’s decision, the Corps halted new and pending approvals under the NWP 12 permit, which are required for construction projects that will discharge dredged or fill material into waters of the United States.

While some sections of the pipeline, including areas along the border crossing between Montana and Canada are unaffected by the ruling, it cannot be completed without the revoked water-crossing permit. Keystone XL has to cross more than 700 bodies of water over the course of its 1,200 mile trajectory from Alberta to Nebraska.

On May 11, 2020, the federal district court judge in the Montana case modified the order to allow repairs of existing utilities and pipelines, but left the order intact as to KXL and new construction of pipelines. The government and TC Energy, Inc., appealed to the Ninth Circuit Court of Appeals and asked the appeals court to stay the order while the case is on appeal. The Ninth Circuit denied that request on May 28, 2020, refusing to stay the Montana ruling while appeals were pending.

On May 29, 2020, another complaint was filed in federal district court in Montana by the Fort Peck Assiniboine and Sioux Tribes of northeast Montana against the U.S. Department of the Interior, the Bureau of Land Management (BLM) and the U.S. Army Corps of Engineers challenging the permitting decisions regarding the KXL pipeline and seeking an injunction to stop construction of the pipeline. The case brought by the Fort Peck Tribes addresses the BLM and Corps failure to adequately consider: (1) the catastrophic impacts that an oil spill into the Milk or Missouri Rivers would cause to the Reservation, which is roughly a quarter mile upriver from where those two rivers join forming the southwestern boundary of the Fort Peck Indian Reservation; (2) the environmental justice issues regarding disproportionate impacts on the Tribes; (3) protections and alternatives that could mitigate or avoid such harms; and (4) the indirect effects of TC Energy Inc.’s construction activities that could exacerbate a crisis of missing and murdered indigenous women and girls in Montana. The complaint also challenges the BLM and the Corps’ failure to identify, evaluate, and mitigate the impacts on the Tribes of pipeline construction activities arising from the coronavirus disease 19 (“COVID-19”) pandemic, and BLM and the Corps’ failure to acknowledge and meet their specific fiduciary duties to protect the Tribes’ Irrigation Project which irrigates 19,000 acres of land and Assiniboine and Sioux Rural Water Supply System which provides drinking water. A ruling on this case is still pending.

On June 16, 2020, the United States and TC Energy, Inc. petitioned the U.S. Supreme Court, urging the court to do what the Ninth Circuit had refused to do—to stay the order pending appeal.

Despite having no permit from the Corps and the fact that the Montana ruling prohibits passing over or under any of the hundreds of bodies of water that the KXL pipeline would cross, TC Energy, Inc. began preparations for construction in June, bringing workers, pipe and equipment to Montana, Nebraska and South Dakota. Importantly, other related construction – such as “man camps” continue and are not affected by the court rulings. What TC Energy, Inc. will do now that the Supreme Court has left the stay in place pending appeal remains to be seen.

On July 6, 2020, the U.S. Supreme Court refused to lift the stay of the KXL pipeline construction while the appeal is pending. The Court did, however, lift the stay as to other pipeline construction in the country. Pipeline construction in Canada continues unaffected.

RELATED NEWS:

In a related new suit filed July 14, 2020, by NRDC, Bold Alliance, Center for Biological Diversity, Friends of the Earth and the Sierra Club against the U.S. Department of the Interior, the Bureau of Land Management, and the U.S. Fish and Wildlife Service, the suit challenges the BLM’s approval to construct the KXL pipeline on 44 miles of federally-controlled public lands in Montana, as well as flawed environmental reviews by the BLM and the U.S. Fish and Wildlife Service. The suit was filed in the U.S. District Court for the District of Montana.

You can read more here:

July 15, 2020 NRDC article:

https://www.nrdc.org/experts/nrdc/nrdc-and-partners-sue-again-over-flawed-keystone-xl-pipeline-approvals

Complaint

https://www.sierraclub.org/sites/www.sierraclub.org/files/blog/20200714%20Complaint.pdf

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We envision a future where free, prior informed consent and sovereignty of Indigenous nations and communities means something, where the environment, sacred sites, treaty rights, and the health and safety of all our communities are placed before corporate interests. Thank you for joining us in the continued struggle for justice, no matter how elusive it may be.

ADDITIONAL READING & RESOURCES:

Supreme Court July 6, 2020 Order

https://www.supremecourt.gov/orders/courtorders/070620zr_2d83.pdf

Solicitor General Application for a Stay Pending Appeal in the Supreme Court

https://www.supremecourt.gov/DocketPDF/19/19A1053/145632/20200615153903095_Keystone%20XL%20-%20Supreme%20Court%20stay%20application%20final.pdf

Indigenous Environmental Network – Keystone XL Pipeline Interactive Map Highlights Risk to Indigenous & Farming Communities

Map can be found here: https://climatealliancemap.org/kxl-map