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. TC Energy, formerly 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.

Listen to our 4/11/2019 CleanLaw podcast on the Keystone XL presidential permit here.

Current Status

March 29, 2019 President Trump issues a presidential permit authorizing the construction, operation, and maintenance of the Keystone XL oil pipeline. The new permit immediately authorizes TC Energy to begin building the pipeline. To learn more about the presidential permitting process, read our blog post here

April 5, 2020 TC Energy begins construction on the pipeline, starting in northern Montana.

July 6, 2020 The Supreme Court grants the application for the stay in part and denies it in part, allowing all other new oil & gas pipelines to use Nationwide Permit 12 for water crossings again, except for the Keystone XL pipeline. The Ninth Circuit will now hear the appeal and construction of the Keystone XL can continue in the meantime, as long as it does not cross waterways or disrupt wetlands.

July 14, 2020 Five environmental groups file a lawsuit against the Department of Interior challenging its right-of-way grant to TC Energy by alleging the agency did not comply with the Endangered Species Act and the National Environmental Policy Act. Bold Alliance v. Interior, No. 4:20-cv-00059 (D. Mont.).

Sep. 15, 2020 The Army Corps proposes reissuing all existing Nationwide Permits (NWPs) under section 404 of the Clean Water Act and making some modifications. The proposal would separate NWP 12 which authorizes utility line activities into three separate NWPs. The proposal would modify the current NWP 12 to only authorize oil and natural gas pipeline activities. Two new proposed NWPs would authorize activities associated with electric utility lines/telecommunication lines and utility lines conveying water, sewage, and other substances. The proposal would also exclude five types of projects that currently trigger a pre-construction notice from triggering notice under NWP 12. The comment period on this proposed rule closes on Nov. 16, 2020. Comments on the proposal may be submitted here.

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 US 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 US State Department opens a public notice and comment period for Keystone XL. While the US 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 US 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.

Feb. 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.

Jan. 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 US 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 US 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 US 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. Rosebud Sioux Tribe v. U.S. Dept. of State, No. 18-cv-00118 (D. Mont.).

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 US 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. The court also issues an injunction on all preconstruction and construction activities for the pipeline.

Dec. 21, 2018 TransCanada appeals the November 8 injunction halting construction activities on the Keystone XL pipeline to the U.S. Court of Appeals for the Ninth Circuit.

Feb.1, 2019 The Trump administration also files an appeal of the November 8 injunction which temporarily halted construction of the pipeline. The appeal will be heard by the US Court of Appeals for the Ninth Circuit.

Feb. 15, 2019 The US District Court for the District of Montana largely upholds its November 8 injunction order in response to a request from TransCanada to begin limited construction work on the pipeline. The judge denies TransCanada’s request to begin constructing worker camps for the pipeline, but allows some limited construction outside of the pipeline’s main route, such as work on pipe storage and container yards.

Feb. 21, 2019 TransCanada challenges the latest Montana District Court decision, denying it the ability to begin construction work. The Ninth Circuit will hear the request for a stay pending appeal of the November 8 injunction. TransCanada argues that the Ninth Circuit should allow it to begin construction while the court considers the validity of the injunction. In its motion, the company writes: “If TransCanada cannot resume pre-construction activities by March 15th, and actual pipeline construction by August 1st, it will lose the entire 2019 construction season.”

March 15, 2019 The US Court of Appeals for the Ninth Circuit denies TransCanada’s request to stay the November 8 injunction. TransCanada cannot begin construction work beyond what the District of Montana judge allowed on February 15. 

March 29, 2019 President Trump issues a presidential permit authorizing the construction, operation, and maintenance of the Keystone XL oil pipeline. The new permit immediately authorizes TransCanada to begin building the pipeline. It cites only Trump’s authority as president for issuing the permit and does not mention the State Department or the litigation around the previous presidential permit. To learn more about the presidential permitting process, read our blog post here

April 5, 2019 The Indigenous Environmental Network and North Coast Rivers Alliance file a lawsuit challenging the new presidential permit. The complaint argues in part that President Trump does not have authority over the relevant land at the US-Canada border because it is under the authority of the Bureau of Land Management after Congress directed BLM to manage that land. The complaint, filed in the US District Court for the District of Montana, also alleges that the President is attempting to sidestep ongoing litigation. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont.).

April 8, 2019 TransCanada files a motion to dismiss the District of Montana case and void the November 8 injunction in the US Court of Appeals for the Ninth Circuit. TransCanada argues that the case was based on a previous permit so the challenges to the permit are no longer valid now that there is a new presidential permit. 

April 23, 2019 The Rosebud Sioux Tribe and Fort Belknap Indian Community file an amended complaint in their ongoing case against the Department of State, filed in September 2018. The amended complaint raises new claims against TC Energy and President Trump, including treaty violations, a failure to abide by tribal law, and failure to assess potential impacts on the safety and welfare of Native people—especially women and children—from construction of the pipeline. Rosebud Sioux Tribe and Fort Belknap Indian Community v. Trump, No. 4:18-cv-00118-BMM (D. Mont.).

May 6, 2019 TransCanada announces that despite the new presidential permit it has missed the 2019 construction season. TransCanada also announces it is changing its name to TC Energy Corp.

May 7, 2019 The Trump administration says that it will complete supplemental NEPA analysis, although it also says that it is not required do so because of the new presidential permit for the project. 

June 6, 2019 The Ninth Circuit grants TC Energy’s request to vacate the November 8 injunction due to the new presidential permit for the project, meaning construction can begin on the project.

July 1, 2019 Several environmental groups sue the U.S. Army Corps of Engineers, alleging that the agency approved significant portions of Keystone XL’s construction without evaluating the pipeline’s environmental impacts. The complaint further claims that the agency violated a 2018 ruling by the U.S. District Court for the District of Montana that required more environmental impact analysis. N. Plains Res. Council v. U.S. Army Corps of Engineers, No. 19-cv-00044 (D. Mont.).

Oct. 9, 2019 Judge Morris holds a hearing on four Motions to Dismiss, two filed by the federal defendants and two filed by TC Energy, as well as a Motion for Preliminary Injunction to halt construction on the pipeline filed by the plaintiffs. All motions were filed between the end of June and beginning of August 2019. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont.).

Oct. 29, 2019 The State Department holds its only public meeting on a new environmental review of the proposed pipeline, drawing opponents concerned about oil spills.

Oct. 29, 2019 The Keystone Pipeline System leaks 383,000 gallons of oil in North Dakota. In response, the U.S. Pipeline and Hazardous Materials Safety Administration orders the pipeline to remain closed until TC Energy completes an investigation into the spill. The spill was one of the largest onshore crude oil spills in the region in the last decade and Keystone’s largest spill. The pipeline re-opened on November 10, 2019. 

Nov. 8, 2019 The judge in Northern Plains Resource Council v. U.S. Army Corps of Engineers allows five national energy organizations and the state of Montana to intervene in the case on behalf of the federal government and TC Energy. Docket No. 19-cv-00044 (D. Mont.).

Dec. 23, 2019 Judge Morris denies the Motions to Dismiss as well as the Motion for a Preliminary Injunction. The judge is allowing the case to move forward because he sees enough merit in environmental and tribal challengers’ arguments, but he is not formally barring work on the pipeline because TC Energy has said it will not restart pre-construction activities until spring 2020 and plaintiffs can make another injunction request if/when work restarts. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont.).

Jan. 21, 2020 The South Dakota Water Management Board approves five water permits for Keystone XL pipeline construction process. TC Energy requested the permits to draw water from the Cheyenne, White, and Bad rivers.

Jan. 22, 2020 The Department of the Interior grants a right-of-way to TC Energy for a term of 30 years, allowing for the construction of the proposed Keystone XL pipeline across 44 miles of federally managed lands in Montana.

Feb. 18, 2020 The South Dakota House passes a bill that criminalizes “riot boosting” (encouraging people to riot). The bill categorizes riot boosting as a class five felony, punishable by up to five years in prison and a $10,000 fine. Opponents, including various Native American tribal members, argue that the bill is an attempt to silence peaceful protest against the Keystone XL Pipeline.

March 2, 2020 The Fort Belknap Indian Community and Rosebud Sioux Tribe file a motion for preliminary injunction and ask the court to not allow TransCanada to begin construction of the pipeline while the case is under review. Rosebud Sioux Tribe and Fort Belknap Indian Community v. Trump, No. 4:18-cv-00118-BMM (D. Mont.).

March 24, 2020 South Dakota Governor Kristi Noem signs the riot boosting bill into law.

March 31, 2020 After starting pre-construction work, TC Energy announces its plans to begin building the oil pipeline, starting with the 1.2 mile stretch across the U.S.-Canada border.

April 5, 2020 TC Energy begins construction on the pipeline, starting in northern Montana.

April 15, 2020 Chief Judge Brian Morris vacates a Clean Water Act permit, Nationwide Permit 12 issued by the Army Corps of Engineers, that allowed the project to cross waterways. The judge ruled that the Army Corps must give more consideration to how endangered species and their habitats are affected by water crossing activities. This decision does not require TC Energy to stop all construction work on the pipeline, currently underway along the U.S.-Canada border in Montana, only work that involves crossing waterways until the Army Corps sufficiently complies with the court’s order and reissues the permit. N. Plains Res. Council v. U.S. Army Corps of Engineers, No. 19-cv-00044 (D. Mont.).

April 28, 2020 Chief Judge Morris declines to stay his recent order vacating the Army Corps’ Nationwide Permit 12. Federal attorneys requested this stay on April 27 because Nationwide Permit 12 is used for a range of projects across the country- projects involving the construction, maintenance, repair, and removal of utility lines where the work disrupts wetlands (maximum loss of one-half acre). According to the permit, utility lines include electric, telephone, internet, radio, and television cables, lines, and wires, as well as any pipe or pipeline for the transportation of any gaseous, liquid, or slurry substance, including oil and gas pipelines. N. Plains Res. Council v. U.S. Army Corps of Engineers, No. 19-cv-00044 (D. Mont.).

May 11, 2020 Chief Judge Brian Morris agrees to amend his April 15 order and limit its scope solely to new oil and gas pipelines. N. Plains Res. Council v. U.S. Army Corps of Engineers, No. 19-cv-00044 (D. Mont.).

May 13, 2020 The Army Corps files an appeal in the Ninth Circuit, appealing both Chief Judge Brian Morris’ April 15 order vacating Nationwide Permit 12 and his May 11 order amending that decision to restrict it solely to new oil and gas pipelines. The Army Corps also requested the Ninth Circuit stay the order and the court declined to issue an immediate administrative stay on May 14, but is still considering whether to grant a stay and is accepting briefing on an expedited schedule. N. Plains Res. Council v. U.S. Army Corps of Engineers, No. 20-35412 (9th Cir.).

May 28, 2020 The Ninth Circuit Court of Appeals denies the Army Corps’ requests for a partial stay of the district court’s April 15, 2020 and May 11, 2020 orders. The amended order from May 11, 2020 remains in place, vacating Nationwide Permit 12 for new oil and gas pipelines. N. Plains Res. Council v. Army Corps of Engineers, No. 20-35412 (9th Cir.). 

May 29, 2020 The Assiniboine and Sioux Tribes file a lawsuit challenging the Department of the Interior’s decision to grant a right-of-way for the pipeline and the Army Corps’ decision to grant a permit for the pipeline under the Rivers and Harbors Appropriations Act. The tribes argue the federal government violated the National Environmental Policy Act and its trust responsibility to the tribes when it made these two permitting decisions which “…will allow TransCanada to construct the pipeline up to and under the Milk and Missouri Rivers in northeastern Montana, immediately upstream from where those two rivers join to form the southwestern boundary of the Fort Peck Indian Reservation.” Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation v. Dep’t of the Interior, No. 4:20-cv-00044 (D. Mont.).

June 15, 2020 U.S. Solicitor General Noel Francisco files an application for a stay at the Supreme Court, asking the Court to block the May 11, 2020 order from the U.S. District Court for the District of Montana that halts the use of Nationwide Permit 12 to approve dredge-and-fill activities for new oil and gas pipeline water crossings.

June 24, 2020 Eighteen states, lead by West Virginia, file an amicus brief in the Supreme Court supporting the administration’s request to block the May 11, 2020 order halting the use of Nationwide Permit 12.

June 29, 2020 Environmental groups including Sierra Club and NRDC file an amicus brief in the Supreme Court supporting the decision in the District of Montana to vacate Nationwide Permit 12 as to new oil and gas pipelines.

July 6, 2020 The Supreme Court grants the application for the stay in part and denies it in part, allowing all other new oil & gas pipelines to use Nationwide Permit 12 for water crossings again, except for the Keystone XL pipeline. The Ninth Circuit will now hear the appeal and construction of the Keystone XL can continue in the meantime, as long as it does not cross waterways or disrupt wetlands.

July 14, 2020 Five environmental groups file a lawsuit against the Department of Interior challenging its right-of-way grant to TC Energy by alleging the agency did not comply with the Endangered Species Act and the National Environmental Policy Act. Bold Alliance v. Interior, No. 4:20-cv-00059 (D. Mont.).

Sep. 15, 2020 The Army Corps proposes reissuing all existing Nationwide Permits (NWPs) under section 404 of the Clean Water Act and making some modifications. The proposal would separate NWP 12 which authorizes utility line activities into three separate NWPs. The proposal would modify the current NWP 12 to only authorize oil and natural gas pipeline activities. Two new proposed NWPs would authorize activities associated with electric utility lines/telecommunication lines and utility lines conveying water, sewage, and other substances. The proposal would also exclude five types of projects that currently trigger a pre-construction notice from triggering notice under NWP 12. The comment period on this proposed rule closes on Nov. 16, 2020. Comments on the proposal may be submitted here.