Court Rejects Final Legal Challenge to Keystone XL South

DeSmogBlog’s Steve Horn explains the ramifications of a court ruling dismissing challenges to the permitting process for Keystone XL’s southern leg

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Story Transcript

JAISAL NOOR, PRODUCER, TRNN: Welcome to The Real News Network. I’m Jaisal Noor in Baltimore.

In environmental news, while officials from around the globe meet in Bonn, Germany this week to lock down a new global climate agreement in the leadup to the COP21 UN climate talks in Paris in December, a recent court ruling has the U.S. reinforcing its fossil fuel infrastructure. On Friday, the U.S. appeals court for the 10th circuit rejected allegations that TransCanada, the oil pipeline giant, had dodged standard procedures for the approval of Keystone XL’s southern leg.

Now joining us to discuss this is Steve Horn. He’s a journalist based in Madison, Wisconsin. His work has been featured in the Guardian, the Nation, and Truth Out. He’s also a research fellow at DeSmog Blog.

Welcome back to The Real News, Steve.

STEVE HORN, RESEARCH FELLOW, DESMOG BLOG: Good to be back, thanks for having me.

NOOR: So this means that opponents of the Keystone XL have lost their final legal challenge. Can you tell us what this means?

HORN: So it’s important to distinguish, the opponents of the Keystone XL have lost their final challenge for the southern leg of the Keystone XL pipeline, the portion that runs from Cushing, Oklahoma down to Port Arthur, Texas, and another leg that runs down to Houston, Texas area and the Houston ship channel. That portion is basically over after this U.S. appeals court ruling in the 10th circuit court.

The ruling basically said that the procedure in which the pipeline was approved, which was through a U.S. Army Corps of Engineers nationwide Permit 12 process. It was a process that went around the conventional National Environmental Policy Act process, or NEPA. NEPA is known by environmental legal scholars, environmental lawyers, as sort of the Magna Carta of environmental law. It’s a very conventional way of either certifying of denying big infrastructure projects that might have an environmental or climate change footprint.

And so what the State Department decided to do in 2012 during an election year is hand the southern half of the pipeline over to the U.S. Army Corps of Engineers. The Obama adminis–President Obama, the White House is directly involved in this, I should say, through an executive order that was signed in March 2012 after he gave a speech in Cushing, Oklahoma. A stump speech there in front of the pipes that would become the southern half of the Keystone XL pipeline.

And so through that whole permitting process, it resulted in legal challenge. And this legal challenge moved its way up to the U.S. appeals court of the 10th circuit. The 10th circuit basically came out and said well, hey Sierra Club and other environmental groups, you didn’t raise any of these issues at the Army Corps of Engineers back when they permitted the project. And so it’s a little bit too late now, the pipe’s already in place, and so you’re stuck with what’s there. You should have raised these concerns earlier.

It’s a catch-22 though, as I wrote in the article, because this Nationwide Permit 12 process as compared to the NEPA process means no public comments, it means no public hearings, and there’s lots of complaints during the whole procedure that there was no democracy involved in the whole permitting process. And so the court didn’t really consider, didn’t seem to consider any of that evidence at all. And so when all’s said and done, the conclusion I think is that we’re now in a zone of NEPA-free big tar sands pipeline infrastructure permitting, whether it’s the southern leg of the Keystone XL, or as my article pointed out there’s another major pipeline called the Flanagan South pipeline owned by Enbridge that runs from Flanagan, Illinois down to Cushing, Oklahoma.

And then there’s another challenge for the same sort of loophole procedure that’s happening right now in a U.S. district court in Minnesota. But right now the industry is two for three in winning cases where they haven’t had to comply with the conventional NEPA process. So it’s quickly becoming a new normal, and it’s all happened during the Obama administration.

NOOR: And so you’re arguing this sets a dangerous precedent for the future of such projects.

HORN: Correct. Right, so we’re looking at two major tar sands pipelines that run across and through the United States that have basically gotten away with no NEPA, NEPA being one of the most if not the most important environmental law on the books as far as environmental scholars, environmental lawyers are concerned. Right now these are high level courts. The U.S. appeals court, the only court higher than that is the Supreme Court. The Supreme Court hasn’t heard any of these cases. I’m not sure that it will.

But yes, it’s definitely a crucial new normal that’s being set in place for environmental law, and it’s something that other companies can point to when they go ahead and go, try to find a way to get around NEPA. They can say, well, it’s happened before and the U.S. appeals court said this, and they would be correct.

NOOR: And so you say this lifts the cloud over TransCanada. What’s coming next?

HORN: Yeah, and so that gets the next step. So now TransCanada doesn’t have to spend its time litigating the southern leg case. They can put–at least in the United States context, of course. There’s the Energy East pipeline in Canada that’s another tar sands carrying pipeline that goes eastward. But in the U.S. context they have the northern leg that the State Department has to approve or deny, that President Obama has to approve or deny. They can basically pour all their energy into ensuring that that thing gets built or doesn’t get built.

Now it becomes a question of are they going to take the Enbridge approach. The Enbridge approach has been, that gets back to that U.S. district court case. Enbridge decided for its Alberta Clipper project to avoid the State Department review. Originally they went through the State Department to get an expansion of the Alberta Clipper. Then they decided, well, we’re going to split this in two pieces and dodge the normal permitting process, do it without going through the National Environmental Policy Act.

Now it becomes a question, is–now that TransCanada has this legal precedent set in place, are they going to go–there’s potential that TransCanada will take the same route as Enbridge and learn from, I guess from its own errors, from their perspective of going through this very onerous process they’ve gone through for the northern leg for the past half-decade or so.

NOOR: Well Steve Horn, thank you so much for joining us.

HORN: Thanks for having me.

NOOR: And thank you for joining us at The Real News Network.

End

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