Keystone XL Pipeline Continues to Face Opposition

When we last checked in on the Keystone XL Pipeline saga, TransCanada was facing stiff opposition to its proposed expansion of the existing Keystone Pipeline that runs from the tar sands in Alberta, Canada, to Cushing, Oklahoma.  Not much has changed.  Despite TransCanada’s decision to change the pipeline’s route to avoid the wetlands of the Sand Hills area of Nebraska, the Obama administration has refused to support the pipeline. In January, the administration denied the presidential permit needed for the pipeline to cross the U.S.-Canadian border, claiming it did not have enough time to assess whether the project was in the national interest.

 

In response, TransCanada divided the project into two legs: the northern leg, from Canada into the U.S., and the southern leg, from Cushing, Oklahoma, to the Gulf of Mexico.  The southern leg does not require a Presidential permit because it does not cross national borders.  It will, however, cross U.S. territorial waters, which will require a permit from the Army Corps of Engineers under Section 404 of the Clean Water Act (CWA).  The Corps can grant permits on individual projects, which are subject to review under the National Environmental Policy Act (NEPA) each time a permit is requested, or Nationwide Permits (NWP), which are only subject to NEPA review at the rulemaking stage. After the submission of a preconstruction notice by a potential user of a NWP, the proposed project may be authorized under the NWP without public comment as long as the project satisfies the conditions of the NWP.

 

On June 26, the Corps granted a NWP 12 to TransCanada for the pipeline.  NWP 12 permits the construction of utility lines that do not result in the loss of greater than ½ acre of U.S. waters.

 

On June 29, the Sierra Club, Clean Energy Future Oklahoma and the East Texas Sub Regional Planning Commission filed a lawsuit against the Corps in the U.S. District Court for the Western District of Oklahoma seeking declaratory and injunctive relief against the project.  The plaintiffs allege that the Corps improperly granted the NWP 12 because the project would have more than minimal individual and cumulative environmental effects in violation of 404(e) and, therefore, the Corps should have examined each crossing separately under the individual permit procedures.

 

In addition, the plaintiffs claim that the promulgation of NWP 12 by the Corps is itself a violation of CWA and the Administrative Procedures Act (APA).  Among other arguments, the plaintiffs claim that the discretion given to district engineers to determine on a project-by-project basis whether the activities will have no more than minimal effects violates the public comment requirement of the CWA and the APA. 

 

The Sierra Club could be laying the legal groundwork for a blanket challenge to the issuance of NWPs.  The purpose of NWPs are to streamline the permitting process and allow certain categories of activities to be undertaken without extensive government intrusion.  The NWP process will necessarily require some discretion on the part of district engineers who must determine whether a particular project meets the guidelines established during the rulemaking process.  An NWP should not, however, be used as a substitute for proper rulemaking procedures.

 

Sierra Club complaint: Sierra Club Complaint.pdf

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