Federal Judge Halts Keystone XL Pipeline Construction, Again

Published May 15, 2020

For the second time in three years, Judge Brian Morris, of the United States District Court for Montana intervened to block construction of the Keystone XL oil pipeline. In this instance, Morris canceled a permit issued by the U.S. Army Corps of Engineers (COE) granting TC Energy the right to construct the portions of the Keystone XL pipeline needed to bring it to completion.

Morris, appointed to the court by President Barack Obama, said COE failed to adequately consider effects of the pipeline might have on endangered species such as pallid sturgeon in rivers the pipeline would cross.

Morris’s ruling comes despite multiple federal and state agencies under two different Presidential administration’s repeatedly producing analyses indicating the Keystone XL pipeline could be built with no significant impact on the environment, including no serious impact on water quality or endangered species. In 2017, COE issued a nationwide permit, a type of permit giving blanket approval to pipeline or similar utility projects along a route it concludes will have minimal effects on waterways.

Some Work Proceeds

Morris’s decision comes less than a month after TC Energy announced, with all final U.S. permits and a $1.1 billion grant from Alberta’s provincial government in hand, it intended to start construction some of the last remaining portions of the pipeline linking Canadian oil fields to refineries in the Texas gulf coast.

Although Morris’s ruling does not affect work already begun at the Canada-U.S. border crossing in Montana, unless his decision is overturned by a higher court or Morris reverses himself, TC Energy will need to obtain a new permit from COE to complete construction across hundreds of rivers and streams along Keystone’s 1,200-mile route.

Keystone History

The Keystone XL pipeline would carry up to 830,000 barrels of crude daily to from Canada to Nebraska, where it would be transferred to another TC Energy pipeline for shipment to refineries and export terminals on the Gulf of Mexico.

The vast majority of the pipeline did not need federal approval and has been built or connected in segments stretching from the Gulf Coast of Texas to the Midwest. The final segment needed approval from the U.S. State Department and from Nebraska regulators who had to approve a route for the portion of the pipeline crossing the state.

Under President Barack Obama, the State Department twice issued reports concluding the pipeline would deliver large quantities of Canadian oil to U.S. refineries, create thousands of jobs, and have minimal environmental impact in the United States. Despite his State Department’s conclusions, Obama denied approval of the final leg of Keystone XL, saying it would contribute to climate change. Without federal approval, Nebraska regulators decided not to bother approving a safe route for the pipeline.

Just two months after being sworn in as president, Donald Trump reversed Obama’s decision and directed the State Department to approve Keystone XL. In June 2017, after reviewing its impact on the environment and climate, the State Department approved the permit to build the $8 billion transnational pipeline. By November 2017, Nebraska regulators had also given the pipeline the final approval needed to begin construction.

Morris Versus the Pipeline

Morris has blocked the Keystone XL pipeline previously.

In response to a lawsuit filed by environmental groups challenging the State Department’s approval of the project, on November 8, 2018, Morris issued a “permanent restraining order” on further construction of the pipeline requiring the State Department to do further environmental reviews of the plan.

On June 6, 2019, a three judge panel of the U.S. Ninth Circuit Court of Appeals reversed Morris’ decision, revoking his restraining order and allowing the pipeline construction to proceed.

In response to another lawsuit filed by environmental groups, Morris has now cancelled Keystone XL’s COE water permit.

Increasing Pipeline Costs

Environmentalists hope tying up the Keystone XL and other pipelines in court through a continual stream of costly lawsuits in the hopes it will force companies to conclude the legal morass will consume more resources than pipelines are worth, Grow America’s Infrastructure Now Coalition (GAINC) told The Hill.

“Yesterday’s [April 15] ruling on Keystone XL’s Clean Water Act permits is concerning for the future of American energy,” GAINC told the Hill. “Keystone XL was permitted after years of careful review and received the necessary approval from both the U.S. Army Corps and State Department.”

“But the pipeline’s decade-long permitting battle has energy developers thinking twice before investing in new energy infrastructure projects,” said GAINC. “Infrastructure development, like Keystone XL, requires regulatory certainty and a straightforward permitting process that ensures these investments, which cost hundreds of millions of dollars, are able to proceed with construction and safely operate once completed.”

Halting Fossil Fuel Use

These lawsuits are not really about the pipelines per se, but are part of a larger war waged to stop the world from using fossil fuels, says Paul Driessen, a senior policy advisor with the Committee For A Constructive Tomorrow and a policy advisor to The Heartland Institute, which publishes Environment & Climate News.

“After President Trump was elected, environmentalists sprang into action to halt fracking, pipelines, and other fossil fuel projects,” said Driessen. “These radicals are using every tactic at their disposal—including blocking access to drilling and fracking sites, turning off pipeline valves, and other acts of vandalism and eco-terrorism—to force Americans to stop using fossil fuels.

“The anti-fossil fuel campaigners’ real objective is reverse more than 100 years of economic progress and technological development, but that’s not going to happen, any more than previous generations of Luddites were able to eliminate textile mills, automobiles, or other technologies,” Driessen said. “So now they’re trying to prevent oil and gas from getting out of fields, and thereby strangle energy and revenue streams, bankrupt a few companies, or at least inflict some financial pain by filing a virtually endless series of expensive lawsuits against pipelines and infrastructure, to drive up company costs by delaying or preventing oil and natural gas producers from getting their products to market.”

Dreissen says environmentalists should be forced to bear the costs they are imposing upon companies and countries.

“Groups repeatedly filing these frivolous, dilatory lawsuits in the United States and Canada need to be fined or otherwise penalized for their actions, which are costing both economies tens of billions of dollars every year for no climate or environmental benefits, since the rest of the world is using more and more coal, natural gas, and oil every year,” Driessen said.

H. Sterling Burnett, Ph.D. ([email protected]) is a senior fellow at The Heartland Institute.