US Court Denies Halt on Pipeline Set to Replace Keystone XL Northern Half

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The ever-wise Yogi Berra once quipped โ€œIt’s like dรฉjร  vu all over again,โ€ a truism applicable to a recent huge decision handed down by theย United States District Court for the District ofย Columbia.ย 

A story covered only by McClatchy News‘ย Michael Doyle, Judgeย Ketanji Brown Jackson shot down Sierra Club and National Wildlife Federation’s (NWF) request for an immediate injunction in constructing Enbridge’s Flanagan South tar sands pipelineย in a 60-pageย ruling.

That 600-mile long, 600,000 barrels per day proposed line runs from Flanagan, Illinois – located in the north central part of the state – down to Cushing, Oklahoma, dubbed the โ€œpipeline crossroads of the world.โ€ย The proposed 694-mile, 700,000 barrels per day proposedย Transcanada Keystone XL northern half also runs to Cushing from Alberta, Canada and requires U.S. State Department approval, along with President Barack Obama’sย approval.ย 

Becauseย Flanagan South is not a border-crossing line, it doesn’t require the State Department or Obama’s approval. If Keystone XL‘s northern half’s permit is denied, Flanagan South – along with Enbridge’s proposal to expand its Alberta Clipper pipeline, approved by Obama’s State Department during Congress’ recess in August 2009 – would make up that half of the pipeline’s capacity and thenย some.ย 

At issue in the District Court was the legality of the U.S. Army Corps of Engineers issuing a Nationwide Permit 12 to shove through the Flanagan South (muchย like the Appeals Court case covered here onย DeSmogBlogย just weeks ago with Transcanada’s Keystone XL‘s southern half, rebranded the โ€œGulf Coast Pipeline Projectโ€ byย Transcanada).ย 

Sierra Club and NWF argued for an injunction – or halt – in constructing and pumping tar sands through Flanagan South until the legality of issuing a Nationwide Permit 12 is decided, an issue still awaiting the decision ofย Judge Jackson. Like the Keystone XL southern half case, Nationwide Permit 12 was used instead of going through the National Environmental Policy Act (NEPA).

NEPA – unlike the fast-track Nationwide Permit 12 – requires the EPA to issue a full draft Environmental Impact Statement and final Environmental Impact Statement, with 1-2 month public commenting periods following each Statement. EPA must take public comments into account when making its final judgments on pipelineย projects.

Use of Nationwide Permit 12 has quickly become a โ€œnew normalโ€ for fast-track approval of tar sands pipelines and other controversial domestic energy infrastructureย projects.ย 

Corporate Profits vs. Environmentalย Harms

Judge Jackson – an Obama appointeeย with a legal background predominantly in corporate lawย – boiled down the competing parties’ arguments into a โ€œharmsโ€ balancing test: Enbridge’s corporate profits vs. irreparable environmental and ecological harms Enbridge’s Flanagan South mayย cause.

Judgeย Ketanji Brown Jackson; Photo Credit:ย United States Sentencingย Commission

She wasted little time getting to the point, issuing her judgment denying Sierra Club’s and NWF‘s injunction request by the second paragraph on the second page of the ruling. She then spent the next 58 pages giving in-depth legal justifications as toย why.

โ€œPlaintiffs have significantly overstated the breadth of federal involvement in the pipeline project and have failed to establish sufficiently that applicable federal statutes and regulations would require the extensive environmental review process that Plaintiffs seek,โ€ Jackson wrote. โ€œMoreover, Plaintiffs have fallen short of demonstrating that irreparable harm will result if the current construction proceeds during the pendency of this litigation, and the Court is not convinced that the balance of harms and public interest factors weigh in Plaintiffsโ€™ย favor.โ€

Flanagan Shrouded inย Secrecy

One of the major grievances of Sierra Club and NWF had – like Sierra Club had with the Army Corps of Engineers permitting for Keystone XL‘s southern half – is that Nationwide Permit 12 generally deals with small projects deemed โ€œsingle and complete,โ€ usually half an acre in size orย less.

โ€œWhen constructed, the FS Pipeline will cross approximately 1,950 wetlands or waters under the jurisdiction of the Corpsโ€”an area that, as noted above, totals 13.68 miles,โ€ย Jackson explained in outlining the Plaintiffs’ย argument.

Thus, Enbridge received close to 2,000 Nationwide Permit 12’s – all โ€œsingle and complete projectsโ€ – despite the fact it is one single pipeline running from north central Illinois to Cushing, OK.

Sierra Club did a Freedom of Information Act request to learn more about the scope and environmental impacts of Flanagan South, only to see its requests denied by the Army Corps of Engineers, first initially and then again after its appeal. Even though Nationwide Permit 12 doesn’t include public hearings and there were no public hearings for Flanagan South, Jackson argued to theย contrary.ย 

โ€œNotably, general permitsโ€”including the nationwide permit at issue hereโ€” undergo a stringent pre-approval evaluation process that involves a comprehensive environmental assessment under NEPA and also public notice and comment,โ€ sheย wrote.

Yet it’s the very lack of a public commenting period and lack of a โ€œcomprehensiveโ€ environmental assessment that’s at the crux of this legal challenge by Sierra Club and NWF to begin with. From day one, Flanagan South has been shrouded in secrecy.

โ€œThis project hasn’t been on the public radar because it was permitted behind closed doors without any public notice or process,โ€ explained Sierra Club attorney Doug Hayes in an interview with DeSmogBlog. โ€œEven our repeated FOIA requests for information about the project’s impacts wereย denied.โ€

โ€œMost people we’ve talked to along the route have been shocked to learn that a tar sands pipeline is being built in their backyards and there was no NEPA process at all.ย No agency held any public hearings nor allowed publicย comment.โ€

Jackson Admits Fast-Track Name ofย Game

Even Judge Jackson admitted the whole point of Nationwide Permit 12 is to fast-track construction of pipelines and other related projects, thus contradicting her earlier claims of the review for Flanagan South beingย โ€œcomprehensive.โ€

โ€œThe purpose of the statute that authorizes general permits such as the nationwide permit at issue here is to allow the Corps to designate certain construction projectsโ€ฆwith little, if any, delay or paperwork,โ€ Jacksonย wrote.

โ€œIn other words, the requisite comprehensive environmental review is done upfront under the general permitting system precisely to avoid a NEPA environmental review regarding certain projects that fit into categories of activity that have been predetermined to have minimal environmental impact. Therefore, once the Corpsโ€™s district engineers verified that the discharges resulting from the FS Pipeline satisfied NWP 12, no additional environmental review wasย required.โ€

Jackson: โ€œNo Ultimate Environmentalย Effectโ€

Jackson made it crystal clear how seriously she takes the potential ecological impacts of Flanagan South: not seriously at all. She went so far as to call the environmental worries of Sierra Club and NWF โ€œbald allegations,โ€ reducing plaintiffs’ environmental worries to fear of harm to โ€œflora andย fauna.โ€

โ€œ[N]otwithstanding Plaintiffsโ€™ bald allegations of concrete injury to flora and fauna, the record does not clearly establish that the FS Pipeline construction will have a significant or substantial impact on the wildlife in the pipelineโ€™s path,โ€ opinedย Jackson.

โ€œ[T]he environmental impact of the pipeline construction may be minimal, and the Corps has already verified that the seemingly troublesome water crossings will have little or no ultimate environmental effectโ€ฆIt is also apparent that Plaintiffs have significantly overstated the certainty and imminence of some of the injuries theyย predict.โ€

Comparisons to other major tar sands pipeline spills – such as Enbridge’s โ€œdilbit disasterโ€ spill into Michigan’s Kalamazoo River, the recent ExxonMobil Mayflower, Arkansas spill and the 12 Transcanada original Keystone tar sands pipeline spills – all went unmentioned in Jackson’sย ruling.

โ€œThe Court acknowledges and accepts that some of the people who live in areas near the pipeline project are sincerely worried about the harm that an oil spill might cause,โ€ she wrote. โ€œAs genuine as these concerns may be, Plaintiffs have not shown that a damaging oil spill is likely to occurโ€ฆIn other words, the harms that an oil spill might potentially someday causeโ€”however fearsomeโ€”are notย certainโ€ฆโ€

Judge Johnson’s argument flies in the face of the lived existence of one of Enbridge’s Steptoe & Johnson attorneys for the case,ย David Coburn.ย He also serves asย legal counsel to Enbridge for its clean-up efforts in Michigan, the largest domestic tar sands spill in U.S.ย history.

Ruling: Corporate Profitsย Sacrosanct

After spending 55 pages trashing the Sierra Club/NWF legal arguments and dismissing potential environmental impacts of Flanagan South out-of-hand, Jackson then applies the corporate bottom line vs. environmental harms balancingย test.

โ€œIn the Courtโ€™s view, Enbridgeโ€ฆ[has] the better of these arguments,โ€ wrote Jackson. โ€œWith respect to the balance of harms, the record as it currently stands shows that Enbridge has committed major resources to the FS Pipeline project over the last 18 months, including engaging in an intensive effort to comply with the myriad state and federal environmental regulations that the pipeline project implicates. The evidence of the time and effort that Enbridge has already put in to the project lends credence to Enbridgeโ€™s argument that it will suffer harm if the pipeline is indefinitelyย delayed.โ€

Jackson then scoffs at the environmental harms caused by the pipeline, not even once mentioning climateย change.

โ€œPlaintiffs, by contrast, have failed to demonstrate the harms that they allege with specificity in regard to the FS Pipeline in particular, relying instead on general harms they have identified by analogizing this project to other pipelines,โ€ she wrote. โ€œWhile the Court is aware of the potential negative environmental consequences that can accrue from the construction and operation of a large oil pipeline, it is also hesitant to weigh these possibilities too heavily without more evidence linking them to this particular pipelineย project.โ€

What’sย Next?

Sierra Club and NWF have both yet to decide if they will appeal this injunction ruling while they await a ruling on the legal merits of their Nationwide Permit 12 challenge. If they do appeal it, the U.S. Circuit Court of Appeals for the District of Columbia – often referred to as the โ€œDC Circuitโ€ – will hear theย case.ย 

โ€œWe are disappointed with the ruling,โ€ remarked Hayes. โ€œAccording to the government’s position, no oil pipeline would ever have to undergo an environmental analysis in the United States, no matter how dangerous the project or how many federal agencies areย involved.โ€

Debra Michaud – an activist with Tar Sands Free Midwest, a grassroots group developing a campaign to fend off Flanagan South – says this decision will only further embolden area activists movingย forward.

โ€œWe are outraged. This decision, with its nationwide implications, sets a dangerous precedent and legal justification to ram pipeline projects through without any regard for landowner rights and environmental regulations,โ€ she said. โ€œActivists in the Chicago area are calling for a nationwide campaign to fight this egregious abuse ofย power.โ€

Photo Credit:ย tankist276ย |ย ShutterStock

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Steve Horn is the owner of the consultancy Horn Communications & Research Services, which provides public relations, content writing, and investigative research work products to a wide range of nonprofit and for-profit clients across the world. He is an investigative reporter on the climate beat for over a decade and former Research Fellow for DeSmog.

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