A New Application For The Keystone XL Tar Sands Pipeline Means A New Review Process

by Anthony Swift, via NRDC’s Switchboard

The State Department announced that it has received an application from TransCanada for a Presidential Permit for the northern segment of its proposed Keystone XL tar sands pipeline that the President rejected back in January.

Keystone XL would carry 830,000 barrels a day of tar sands from Alberta, Canada to the Texas Gulf Coast. Tar sands are the world’s dirtiest form of oil, require a devastating process that lays waste to forests to extract tar sands bitumen, a thick low grade fuel that has significantly higher emissions that conventional crude.

Tar sands pipelines also appear to pose higher risks – both in number and severity of pipeline spills. Keystone XL would grant tar sands a route through America’s heartland on its way to the international market. It would raise U.S. oil prices, put our waters and farms in jeopardy of hard to clean up tar sands oil spills, and would increase our dependence on oil – worsening climate change and undermining efforts to move to clean energy.

A new application means a new review process. The environmental review for the Keystone XL process must evaluate climate, water, land, and health impacts not only of the pipeline, but of the tar sands extraction, refining and end use. The national interest determination for this transboundary energy project has to assess whether the pipeline is really needed to meet U.S. security, economic, environmental or other goals. The world of oil and our understanding of the dangers of tar sands have changed since the first time TransCanada applied for a permit for Keystone XL back in 2008. The process for evaluating this permit request needs to be thorough, rigorous, transparent and free from conflicts of interest.

So once TransCanada reapplies, what can we expect?

The process for considering whether to permit an international energy project like the proposed Keystone XL tar sands pipeline is governed by Executive Order 13337. This order empowers the State Department to consider applications for Presidential Permits, in consultation with other federal agencies and the public. The Executive Order instructs the State Department to only grant Presidential Permits for projects that are in the U.S. national interest.

However, before the State Department can make a Presidential Permit decision, it must first conduct a National Environmental Policy Act (NEPA) review of the impacts of the pipeline and assess reasonable alternatives. NEPA requires that Federal agencies prepare an Environmental Impact Statement (EIS) before making a decision that would trigger significant environmental impacts. Keystone XL would have tremendous environmental impacts – from the expansion of destructive tar sands extraction, the risk of tar sands spills across U.S. rivers and aquifers and increased refinery and greenhouse gas emissions.

The first step in the NEPA process will be to consult with government agencies, Indian tribes and the public to determine the scope and content of the environmental review for Keystone XL.  This is an opportunity to correct issues of objectivity, transparency and conflicts of interest which plagued the first environmental review prepared by Cardno-Entrix. The environmental review for TransCanada’s proposed Keystone XL tar sands pipeline should have a broad scope – including a consideration of the need for the project given numerous recent infrastructure proposals, the impacts of increase tar sands extraction in Canada associated with Keystone XL, pipeline safety issues, increased refineries emissions, increased carbon emissions associated with replacing conventional crude with tar sands, and the economic costs of continued dependence on Canadian tar sands. The review should take a hard look at areas not considered in the narrow scope of the environmental review of the earlier Keystone XL application as well as consider information about pipeline safety, species, and other areas of impact that have come to light since the review was last done on the earlier application. The review should incorporate the results of other relevant assessments such as the upcoming National Academy of Sciences study of the impact of diluted bitumen or raw tar sands oil on pipeline safety.

The impartiality of original EIS for Keystone XL prepared by Cardno-Entrix on TransCanada’s behalf has been too undermined by conflicts of interest to recycle. In the case of Keystone XL, the environmental review was done by a company that was both paid for and under contract to TransCanada to provide an EIS. It is true that federal agencies often hire third party contractors to conduct an environmental review and the costs are ultimately paid for by the project applicant. In this case, however, TransCanada appears to have largely cut the State Department out of the entire process, having selected, paid for and contracted to Cardno-Entrix to provide an environmental review for Keystone XL.

While an Inspector General (IG) investigation of conflicts of interest between the State Department and TransCanada didn’t find evidence of illegal activity, doing a job well enough to avoid going to jail is not always the same thing as doing a job well.  The IG found that the State Department’s “limited technical resources, expertise and experience impacted the implementation of the NEPA process,” forcing the Department to rely more on its third party contractor to address environmental issues. Given that its third party contractor was actually under contract to TransCanada, the problems with the EIS quickly become apparent. Ultimately, the IG concluded that EIS was not effective. Given the concerns with Keystone XL, the State Department should start from the drawing board and conduct a rigorous environmental review in which  the American public can have confidence.  This argues for a more major role being given to the Environmental Protection Agency and other agencies with specialized experience in different aspects of the assessment process.

After the scope of the environmental review has been determined, the State Department will begin to prepare a draft EIS. This review should include a rigorous review of environmental and cultural impacts of the Keystone XL project. Throughout this process, the State Department must take diligent efforts to involve interested stakeholders – and that means public meetings along the pipeline route that allows affected communities to provide input during the scoping process and comment on the draft EIS.

After the environmental review process, the State Department will consider the whether the Keystone XL tar sands pipeline is in the U.S. national interest. The National Interest Determination process is governed by Executive Order 13337 and should consider the significant environmental impacts of tar sands extraction, the risk of pipeline spills, higher refinery emissions, and the economic consequence of dependence on tar sands. The world of oil supply and transportation has changed rapidly in the United States even over the last year with additional U.S. oil reserves coming online and new pipelines being built within the United States. Both the environmental review and the national interest determination will need to consider new factors that go directly to the question of whether we need Keystone XL and whether it is actually in the U.S. national interest.

A rigorous review of Keystone XL will show that this tar sands pipeline is not in the U.S. national interest. It is not a pipeline to the United States but a pipeline through it, putting America’s heartland, rivers and aquifers at risk so tar sands producers can sell their product to international buyers at higher prices. While that may be in the interests of tar sands producers and their financial backers, it’s not in the interest of the American public.

Anthony Swift is an attorney with the international program at the Natural Resources Defense Council. This piece was originally published at NRDC’s Switchboard and was reprinted with permission.

8 Responses to A New Application For The Keystone XL Tar Sands Pipeline Means A New Review Process

  1. Sasparilla says:

    Excellent article, really well written, detailing the corruption of the previous XL environmental impact statement (although it did leave out that the previous EIS was written by one person if memory serves) and what a reasonable EIS would require.

    I hope the new route does require the kind of EIS that the author details here (one that would obviously take a long time – 3+ years?) – but the political forces being pushed by private industry money want the XL extension happening much faster – and I’m sure the administration would like nothing better than to approve it and have this PR punching bag taken away from the GOP before the election.

  2. Leif says:

    Man made the first rules that govern corporate responsibilities to society. For the last ~200+ years corporations have been diligent in not only following those rules but actively lobbying to strengthening corporate ability to profit from exploiting the commons for profits. All with the blessing of congress, courts, capitalism, even the majority of the people. Suddenly the very foundation of western civilization, capitalism, faces grim reality. With the original omitted need to value Earth’s life support systems in the deal, humanity is facing ecocide and everyone wants to point the finger at others and nothing gets done. Remove the ability of Corpro/People to profit from the pollution of the commons and all that will change. Real people cannot toss a paper cup on the street with out facing a fine, how come Corpro/People get to profit from spreading toxic waste hither and yon with abandon? Even get tax subsidies! The tit milk the daughter-in law feeds the grand-daughter has measurable amounts of their toxin. Traceable directly to the capitalistic ability to pollute the commons for profit. and MY, under duress, Tax Dollar support! Go figure…

  3. Dan Miller says:

    I find it interesting that even in Climate Progress, the impacts of the pipeline are described as threatening areas with oil spills, etc. The #1 reason to stop the pipeline is that it will be “Game Over” for the climate, as Jim Hansen has spelled out. The Canadian tar sands contain enough carbon to raise atmospheric concentrations by 120 ppm! Exploiting the tar sands, beginning with the pipeline, will ensure that we go over 500 ppm later this century and wreck havoc on the world.

  4. Mark E says:

    Please link the map thumb to a higher res map.

  5. Joan Savage says:

    Given the movement afoot to develop Utah tar sands, the southern ‘domestic’ leg of the Keystone XL would not only relieve the pipeline bottleneck that developed at Cushing OK, it would enable faster distribution of domestic US tar sands crude.

    Jim Hansen’s estimate was that rapid extraction and combustion of Canadian tar sands crude would put control of atmospheric CO2 levels into “game over.”
    Let us compound his expectation with the prospect of more dirty oil from within the US.

  6. mulp says:

    Here in NH, conservatives and Republicans are banding together to defend the Koch brothers from renewable Canadian Hydro, taking the opposite position on the Northern Pass Project than they do on the XL Pipeline Project.

    Their tool is to any utility eminent domain for right of way that does not serve the local community. Both the XL Pipeline and Northern Pass projects bypass the local community, but the XL Pipeline is intended to allow Canadian oil to bypass the US entirely, while the Northern Pass Project bypasses northern NH to supply Canadian electric power to all of New England.

    If Republicans believe “green” utility lines must be prohibited from using eminent domain, then Democrats must make sure Congress bans all use of eminent domain for “black” utility lines. It is not sufficient to prohibit eminent domain for the Canada to Cushing pipeline segment – make Congress ban all eminent domain nationally for all utility lines that bypass the communities they cross.

  7. mulp says:

    On the nature of EIS established by President Nixon, the proper place to improve the quality of the rules is by laws passed by Congress.

    The simple fact is no Republican elected to Congress since about 1990 agree with the American people on environmental protection in the broadest sense, as well as for local impacts and moving to a locally sustainable green economy.

    The environmental community needs to take a page from 1970, but instead of targeting for defeat a dirty dozen, target for defeat a dirty hundred legislators in Congress and the State legislators.

    It is the significant block of elected legislators serving the fossil fuel industry who are refusing to represent the American people, but instead cater to the pillage and plunderers of our American land and seascape. Long past time to boot them out of government.

  8. Mulga Mumblebrain says:

    We have had environmental impact statements in Australia for some decades, and, as far as I recall, none ever, out of thousands, has declared any project too damaging to proceed. In NSW a Rightwing (well, more Rightwing than the other Rightwing party)regime established a Land and Environment Court, stacked it with judges ideologically sympathetic (in Australia, unlike the USA which is more honest in this context, we pretend that judges have no ideological bias, although over 90% come from a very narrow social milieu, and it ain’t working-class)to real estate developers and ‘entrepreneurs’, so it never knocks anything back, either. It all gives the inevitable process of destruction the required sham veneer of ‘democratic’ respectability, so necessary when we lecture the Chinese or some other lesser breeds in the niceties of ‘civilization’ and ‘Western values’.