In March, President Donald Trump announced the approval of the Keystone XL pipeline project. Although the project has gained the federal approval that had been so elusive under the Obama State Department, the future of the project remains highly uncertain. State regulators, a federal district court, and TransCanada all have important decisions to make before the first shovel touches soil. Although TransCanada has been granted the State Department approval for the pipeline border crossing, environmental activism and falling oil prices could still sink the project. Before construction–or even planning can begin–the pipeline must not only gain the assent of state officials in Nebraska, it faces pressure from an earlier lawsuit.
Over four days last week, the Nebraska Public Service Commission (PSC) listened to testimony from officials, landowners, and other stakeholders as they deliberated over the Keystone XL pipeline. While witnesses for the pipeline developer spoke of projections that the project would generate 4,000 construction jobs and millions of dollars of additional property taxes, opponents of the project, including environmental groups and property owners, submitted over 461,000 public comments.
“The amount of opposition to the Keystone XL pipeline is clear,” said Jane Kleeb, founder of Bold Nebraska. “Our water, property rights, climate and the Sovereign Rights of Native Nations are in the public interest and must be protected from this foreign tar sands pipeline.”
Even as their allies spoke out against the Keystone XL pipeline at the Lincoln hearings, two native American environmental groups, the Indigenous Environmental Network (IEN) and the North Coast Rivers Alliance (NCRA) continued their case challenging the Presidential Permit in Federal District Court in Great Falls, Montana. On Friday, Stephan Volker, the attorney representing IEN and NCRA answered motions to dismiss filed by the Department of State, the Fish and Wildlife Service, the Department of the Interior, and TransCanada.
Volker says that the environmentalists have “good reason” for confidence, telling InsideSources that Friday’s court appearance was a follow-up to a previous motion, which he did not believe would succeed.
“Our firm (albeit representing different parties) won on similar issues in a previous federal case challenging a federal border-crossing approval for an energy project that crossed the border between California and Mexico,” he told InsideSources in an email.
In the earlier case, Protect Our Communities Foundation v. Chu, Volker successfully argued against a motion to dismiss for another environmental group in 2014. The case against the Keystone XL pipeline argues that the State Department’s final supplemental environmental impact statement failed to analyze the need for the pipeline and to adequately consider alternatives to the project and environmental impacts its construction might have.
The lawsuit itself has an extended timetable. The next hearing is set for October 11. Supporters and opponents of the Keystone XL pipeline are thus waiting not only for the decision of Nebraska lawmakers, but that of the court.
Meanwhile, state officials in Nebraska are still several steps away from granting full approval for the project. Pipeline safety will be addressed by federal regulators. The state officials instead focused their attention on local concerns, including erosion control, restoration of farm ground, economic impact, and influence on Indian cultural sites and endangered species such as whooping cranes.
Although the three-person commission completed its hearings last week, retired Judge Karen Flowers, who served as hearing officer, told lawyers representing TransCanada, landowners, environmental groups, unions, and tribes that they had a September 15 deadline to submit their final comments in writing. Statements from the 13 attorneys will be added to the comments provided before the commission’s hearings.
Looming over the discussion is the specter of the Dakota Access protests, which drew thousands to North Dakota for extended and heated protests last year. In the end, state officials estimated that the protest cost the state some $38 million in law enforcement and court expenses. North Dakota courts are still working though a backlog of cases from last year. At this point, opponents of the Keystone XL pipeline have kept their protests to signs and statements. That doesn’t mean that they have taken protest measures like those used at Standing Rock off of the table, however.
Talking to the Omaha World-Herald, Kleeb said that if construction began on the pipeline, opponents would employ “creative” civil disobedience measures that would make the North Dakota protests look “like a dress rehearsal.”
She later stressed that the protesters would be peaceful, though criminal tactics are increasingly a concern at pipeline protests.
Complicating the situation still further is that TransCanada still has not officially decided that it wants to build the pipeline, which would carry 830,000 barrels of oil sands a day from Alberta to oil refineries on the U.S. Gulf Coast. After spending nearly a decade trying to get approval from U.S. regulators for the project, the company has had difficulty securing shipping commitments from oil sands producers.
The company is seeking both 20-year and short-term commitments from oil sands producers. While it says that it has contracted about 90 percent of shipping capacity for the pre-existing Keystone and projected Keystone XL pipelines, TransCanada is competing against market pressures. Lower oil prices have changed the production schedule for Western Canada. Today the Canadian Association of Petroleum Producers predicts about 1.5 million fewer barrels a day being produced by 2030 than it did in its 2014 analysis. Furthermore, another proposed pipeline, Kinder Morgan’s Trans Mountain expansion, could provide another option for producers if its construction finishes before Keystone’s.
During his campaign, Donald Trump presented the Keystone pipeline as a shovel ready project to help lower gas prices and put Americans to work. Keystone XL now has the president’s nod. Whether that will be enough to let construction start is still unsure, as the challenges of government permitting, long term economic planning, and protesting complicate the outlook of infrastructure projects.