02/13/2018 - Regulatory Rollback

Keystone XL Pipeline

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

The Keystone XL pipeline is a proposed extension of the existing Keystone Pipeline System, which currently transports up to 600,000 barrels of oil per day between Canada and the US. The Keystone Pipeline System runs from the Western Canadian Sedimentary Basin in Alberta to refineries in Illinois and Texas, and also to oil tank farms and an oil pipeline distribution center in Cushing, Oklahoma. TransCanada is the sole owner of both the Keystone Pipeline System and Keystone XL.

The Keystone XL pipeline would connect to the existing pipeline system to bring oil from Hardisty in Alberta, Canada directly to Steele City, Nebraska. It would run through Baker, Montana, where American-produced oil from the Bakken formation in Montana and North Dakota would be added to the pipeline. The proposed 875-mile route of Keystone XL would cross the Missouri and Yellowstone Rivers.

Opponents of Keystone XL are concerned about the construction’s impact on wildlife. The pipeline’s route and associated power lines would span the majority of endangered whooping cranes’ southern migration route to Texas from Canada. It would also cross the remaining habitats of other threatened species such as piping plovers, sage grouse, and swift fox. The pipeline’s route crosses over 50 streams, increasing the risk that oil spills would affect pallid sturgeon habitats.

The Nebraska Public Service Commission’s decision to approve a new route for the Keystone XL pipeline is the latest turn in a decade old legal and regulatory battle over the controversial pipeline. The new route must undergo a federal agency environmental review before the pipeline can be constructed. This review opens the door to more challenges from local stakeholders, tribes, and environmental groups during the approval and permitting processes through the Army Corps of Engineers and Bureau of Land Management.

Current Status

The Keystone XL Pipeline has received all the necessary federal permits to complete the project, but it faces continuing litigation at the U.S. District Court for the District of Montana regarding the project’s compliance with the National Environmental Policy Act (NEPA). The Keystone Pipeline System is operating at 20% reduced pressure following a 210,000 gallon oil spill in November 2017.

Sep. 24, 2018 The State Department releases the draft review of the new route for the pipeline approved in 2017 by the Nebraska Public Service Commission. In the draft supplemental environmental impact statement, the department writes that “there is potential for environmental impacts from the Proposed Action, should an accidental or otherwise unexpected release of crude oil from the Keystone XL pipeline or facilities occur,” but concludes that impacts will not be significant because a release is unlikely.

Nov. 8, 2018, the U.S. District Court for the District of Montana orders the State Department to revisit key aspects of its NEPA analysis before pipeline construction can begin, including reassessing and further explaining its analysis of cumulative greenhouse gas emissions from both Keystone XL and the Alberta Clipper pipeline expansion. The judge also orders the State Department to reassess the potential for oil spills, impacts to cultural resources and implications of current oil prices.

History

Feb. 9, 2005 TransCanada Corporation proposes the Keystone Pipeline System project.

Jan. 11, 2008 TransCanada Keystone Pipeline, LP (Keystone Pipeline System) receives the final environmental impact statement from the United States Department of State regarding the Keystone Pipeline project and Cushing extension, stating the pipeline will result in limited adverse environmental impacts.

March 14, 2008 The U.S. Department of State issues a presidential permit for the Keystone Pipeline System authorizing the construction, maintenance, and operation of facilities at the United States and Canada border to transport crude oil between the two countries. The permit follows the Department of State’s record of decision and national interest determination, which found that the issuance of the Presidential Permit for the Keystone Pipeline System would serve the national interest. TransCanada begins construction of the pipeline system in three phases.

July 2008 TransCanada and ConocoPhillips, then joint owners of the Keystone Pipeline System, propose a major extension to the network, dubbed Keystone XL, to carry hundreds of thousands of barrels of oil sands bitumen from Alberta to Texas.

Jan. 28, 2009 The U.S. State Department opens a public notice and comment period for Keystone XL. While the U.S. State Department conducts an environmental assessment, TransCanada begins visiting landowners potentially affected by the pipeline.

Summer 2009 TransCanada announces it will buy ConocoPhillips’s stake in Keystone.

Feb. 19, 2010 The South Dakota Public Utilities Commission approves a permit for Keystone XL.

March 18, 2010 Canada’s National Energy Board approves TransCanada’s application for Keystone XL with 22 conditions regarding safety, environmental protection, and landowner rights.

April 2010 The U.S. State Department releases a draft environmental impact statement that says Keystone XL will have a limited effect on the environment.

June 2010 Phase I of the Keystone Pipeline System is completed. Phase I delivers oil from Hardisty, Alberta, over 2,147 miles to the junction at Steele City, Nebraska, and on to Wood River Refinery in Roxana, Illinois, and Patoka Oil Terminal Hub in Pakota, Illinois.

July 2010 EPA says the State Department’s environmental impact statement on Keystone XL is inadequate and unduly narrow. This postpones the State Department’s final decision. The State Department extends its review, saying federal agencies need more time to weigh in before a final environmental impact assessment could be released.

February 2011 The Keystone-Cushing Extension, Phase II of the pipeline system, running from Steele City to storage and distribution facilities at Cushing, Oklahoma is completed.

June 28, 2011 The Pipeline and Hazardous Materials Safety Administration issues its first corrective action order to TransCanada for Keystone Pipeline System leaks.

Aug. 26, 2011 The State Department releases its final environmental assessment, which reiterates that the pipeline will have a limited environmental impact.

Nov. 30, 2011 Republican lawmakers introduce legislation to force the Obama Administration to make a decision on Keystone XL within 60 days.

January 2012 President Obama rejects the Keystone XL approval based on lack of adequate assessment of the pipeline’s impacts.

March 2012 Obama endorses the construction of the southern segment (Gulf Coast Extension or Phase III) that begins in Cushing, Oklahoma.

May 4, 2012 TransCanada files a new application with the State Department for the Keystone XL extension. TransCanada also chooses to proceed with the southern portion of its Keystone expansion as a separate project, the Gulf Coast Extension.

March 2013 In its supplemental environmental impact statement (SEIS) of Keystone XL, the U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs describes changes to the original proposals, including the shortening of the pipeline to 875 miles; its avoidance of “crossing the NDEQ-identified Sandhills Region” and “reduction of the length of pipeline crossing the Northern High Plains Aquifer system, which includes the Ogallala formation.” Following this assessment, the SEIS states “there would be no significant impacts to most resources along the proposed Project route.”

Jan. 22, 2014 Phase III of the pipeline system, the Gulf Coast Extension, is completed and begins pumping oil from Cushing, Oklahoma to refineries at Port Arthur, Texas.

Jan. 29, 2015 and Feb. 11, 2015 A bill approving the construction of the Keystone XL Pipeline is passed by the Senate (62–36) and by the House (270–152) respectively.

Feb. 24, 2015 President Obama vetoes the bill, arguing that the decision of approval should rest with the Executive Branch. The Senate is unable to override the veto by a two-thirds majority, with a 62-37 vote.

Sep. 29, 2015 TransCanada drops its lawsuits against Nebraska landowners who refused permission allowing for pipeline easements on their properties, and accedes to the authority of the elected, five-member Nebraska Public Service Commission, which has the state constitutional authority to approve gas and oil pipelines.

Nov. 6, 2015 The Obama Administration officially rejects the Keystone XL Project, saying it does not serve the nation’s interest.

April 9, 2016 The Pipeline and Hazardous Materials Safety Administration issues another corrective action order to TransCanada for Keystone Pipeline System leaks.

Trump Era

Jan. 24, 2017 President Trump signs an executive order to expedite the approval of both the Keystone XL Pipeline and Dakota Access Pipeline.

March 24, 2017 Trump signs a presidential permit to allow TransCanada to build the Keystone XL pipeline. In response, several environmental groups sue the Trump administration. The lawsuit challenges the U.S. Department of State’s and other agencies’ environmental review of the pipeline. The groups argue that the environmental review was inadequate under the National Environmental Policy Act (NEPA) and the Endangered Species Act because it relied on a dated environmental impact statement from January 2014 and failed to consider key information on the project’s impacts.

Nov. 16, 2017 The Keystone Pipeline System leaks 210,000 gallons of oil in South Dakota as the result of construction damage.

Nov. 20, 2017 The Nebraska Public Service Commission approves (3-2) the construction of the pipeline, albeit through an alternative route (the Mainline Alternative Route [MAR]), which is longer, but is deemed to have the least environmental impact compared with two other routes that were considered (although this route was not considered in the 2011 environmental impact statement).

Nov. 28, 2017 The Pipeline and Hazardous Materials Safety Administration issues another corrective action order to TransCanada for Keystone Pipeline System leaks.

Dec. 19, 2017 The Nebraska Public Service Commission rejects TransCanada’s petition to use an alternative route closer to the original proposed route.

Jan. 18, 2018, TransCanada announces that it will be obtaining easements in advance of construction along the MAR.

Feb. 21, 2018 A US District Judge in Montana orders the Trump Administration to release by March 21, 2018 the documents it used to make its Keystone XL decision, or explain why it would not.

Late March 2018 In a court declaration, Jill Reilly, the Acting NEPA Coordinator of the U.S. Department of State’s Bureau of Oceans and International Environmental and Scientific Affairs, writes that the department is “reviewing the MAR in light of TransCanada’s announcement” that TransCanada is seeking MAR construction easements. The department will hire a contractor to conduct the new environmental review.

Aug. 15, 2018 The US District Court for the District of Montana rules that the supplemental EIS from 2014 needed to consider the pipeline’s approved route through Nebraska and the State Department is required to complete that analysis.

Sep. 10, 2018 The Rosebud Sioux Tribe and the Fort Belknap Indian Community file a lawsuit in the U.S. District Court for the District of Montana challenging the State Department’s decision to issue a cross-border permit for the Keystone XL pipeline. The filing alleges various violations of the Administrative Procedure Act, National Environmental Policy Act and National Historic Preservation Act during the permitting process.

Sep. 24, 2018 The State Department releases the draft review of the new route for the pipeline approved in 2017 by the Nebraska Public Service Commission. In the draft supplemental environmental impact statement, the department writes that “there is potential for environmental impacts from the Proposed Action, should an accidental or otherwise unexpected release of crude oil from the Keystone XL pipeline or facilities occur,” but concludes that impacts would not be significant because a release is unlikely.

Nov. 8, 2018, the U.S. District Court for the District of Montana orders the State Department to revisit key aspects of its NEPA analysis before pipeline construction can begin, including reassessing and further explaining its analysis of cumulative greenhouse gas emissions from both Keystone XL and the Alberta Clipper pipeline expansion. The judge also orders the State Department to reassess the potential for oil spills, impacts to cultural resources and implications of current oil prices.

 

Thank you to Harvard Law students Leilani Doktor, JD 2019, and Grace Weatherall, JD 2021, for their assistance with this rule.