• Investigations
  • Opinion & Analysis
  • Cartoons
  • Podcasts
  • Videos
  • Language
    • 中文
    • русский
    • Español
  • GAZA Fights Back
  • National News
  • Foreign Affairs
  • Elections
  • Civil Liberties
  • Environment
  • Health & Lifestyle
  • Media & Culture
  • MyMPN Announcements

Court Rules For TransCanada In Keystone XL South Case

June 9, 2015 by Steve Horn Follow @SteveAHorn @SteveAHorn

File: Protesters against the Keystone XL pipeline in New York City on January 8, 2013. (Michael Fleshman / Flickr)

File: Protesters against the Keystone XL pipeline in New York City on January 8, 2013. (Michael Fleshman / Flickr)

In a 3-0 vote, the U.S. Appeals Court for the Tenth Circuit has ruled that the southern leg of TransCanada’s Keystone XL pipeline was permitted in a lawful manner by the U.S. Army Corps of Engineers.

Keystone XL South was approved via a controversial Army Corps Nationwide Permit 12 and an accompanying March 2012 Executive Order from President Barack Obama. The pipeline, open for business since January 2014, will now carry tar sands crude from Cushing, Oklahoma to Port Arthur, Texas without the cloud of the legal challenge hanging over its head since 2012.

As previously reported here on DeSmog, the Sierra Club and co-plaintiffs already lost their Appeals Court legal challenge to impose an injunction and stop diluted bitumen (“dilbit”) from flowing through Keystone XL South back in October 2013. Now that same Court, albeit different judges, have ruled that the pipeline approval process itself was also legally acceptable.

 

Blame the victim

At its core, the case centered around legal issues pertaining to the March 2012 Obama White House Executive Order and accompanying Army Corps’ Nationwide Permit 12 issued to TransCanada to build Keystone XL South. Sierra Club and co-plaintiffs had argued that by issuing a Nationwide Permit 12, the Army Corps helped TransCanada dodge the more rigorous National Environmental Policy Act (NEPA) process, thus violating NEPA.

The judges begged to differ, saying no violation of NEPA transpired because Sierra Club never mentioned concerns during the public commenting period, such as potential oil spills. In turn, argued one judge, that was not something “obvious” the Corps should have examined.

Judge Robert E. Bacharach, an Obama-appointee, wrote:

We may assume, for the sake of argument, that the Corps knew that issuance of the nationwide permit could lead to installation of oil pipelines, which in turn could create environmental risks from oil spills … Regardless of whether that view was correct, it went unchallenged in the public comments for theissuance of Nationwide Permit 12 and the State Department’s consideration of the Keystone XL Pipeline.

Not mentioned by Bacharach: the Nationwide Permit 12 process, unlike a NEPA review, does not allow for public comment. Nor does it have public hearings. For example, at a June 2012 press conference, Texas-based landowner David Danieldecried the lack of chances to comment publicly on Keystone XL South.

Despite lack of an opportunity to submit public comments to the Corps on Keystone XL South, another judge used the same argument to side with TransCanada and the Army Corps.

“I conclude that Sierra Club’s argument that the Corps improperly deferred portions of its NEPA analysis to the verification stage was not made to the agency during the reissuance process and is therefore waived,” wrote Judge Carolyn McHugh, another Obama-appointee. “Sierra Club has pointed to no part of the record in which any commenter objected to the Corps’ decision to defer parts of its NEPA analysis to the district engineers or prospective lead agency.”

McHugh made that conclusion even though she sided with the Sierra Club’s argument that the Corps’ review was ultimately inadequate in its scope.

“To be sure, accounting in advance for the broad range of possible impacts resulting from the wide variety of utility lines authorized under NWP 12 is a daunting task,” she wrote. “But compliance with NEPA is not excused simply because compliance is difficult.”

 

No NEPA, no problem

A federal court ruling came to an analogous conclusion in August 2014 for Enbridge’s Flanagan South pipeline, also permitted via the Army Corps’ Nationwide Permit 12 process.

A similar case remains on the docket for the U.S. District for the District of Minnesota as it pertains to what environmental groups have called an “illegal scheme” that avoided a NEPA review. The “scheme” was used to permit Enbridge’s Alberta Clipper expansion project.

Those Enbridge dilbit-carrying pipelines are two of the three pieces of what DeSmog has coined the “Keystone XL Clone,” which like the Keystone Pipeline System, brings Alberta’s tar sands crude down to Gulf coast refineries and in small quantities, for now, onto the global export market.

No NEPA review for tar sands-carrying pipelines that cross the borders of many states and in the case of Alberta Clipper, the U.S.-Canada border? At least for now, federal courts and the Obama Administration have made clear, no problem.

 

Originally published at DeSmogBlog.

Content posted to MyMPN open blogs is the opinion of the author alone, and should not be attributed to MintPress News.

Filed Under: Environment, National News Tagged With: Climate change, Keystone XL, Tar sands, Texas, TransCanada

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

About MyMPN

MyMPN is MintPress News' community site. Anyone can participate by writing a diary and commenting on others' diaries.

Content posted to MyMPN is the opinion of the author alone, and should not be attributed to MintPress News.

MyMPN will cease publishing on January 15, 2017. Thank you for your support of our work.

  • More about MyMPN
  • Report site problems and bugs
  • MyMPN Comment Moderation

Follow Mintpress

RSSTwitterFacebookGooglePlus

Our Latest Posts

In The Age Of Trump, Peaceful Revolt Is Our Only Option

By Kevin Patrick Kelly January 11, 2017

Hafizah Geter Gives Moving Poetic ‘Testimony’ At Medgar Evers College

By José Negroni January 10, 2017

Gonzo Journalism Rejects The Myth Of The Neutral Media

By Dr. Milena Rampoldi January 9, 2017

Aleppo: How The US Manipulates Humanitarianism For Imperialism

By Steven Chovanec January 6, 2017

Why One ‘Remain’ Voter Now Supports A Hard Brexit

By Tara Lighten Msiska January 5, 2017

Hawaiian Kingdom, American Empire: An Interview With Professor Keanu Sai

By Dennis Riches January 4, 2017

War Against Rape In Karachi: Advocating For A Rape Free Society

By Dr. Milena Rampoldi December 30, 2016

What’s In A Name? From ‘Al-Qaeda’ To The ‘Kingdom Of Saudi Arabia’

By Nu’man Abd al-Wahid December 29, 2016

Popular Tags

activism Africa American imperialism Barack Obama Canada capitalism Climate change democracy Democratic Party Donald Trump Egypt election 2016 energy fracking history Human Rights inequality Iraq ISIS Islam Islamic State Israel journalism MENA Middle East mining nuclear oil Palestine police poverty prison propaganda racism Republican Party Russia Saudi Arabia Syria terrorism Texas United Kingdom United Nations Wall Street War water

Sign up for our Daily Newsletter

Copyright © 2022 Mint Press, LLC