Faculty Blog, Professor Manus

The Latest Decision in the Keystone XL Saga: The State Department Fails to Explain an Environmental Reversal

This is a story that begins and ends with global warming. That global warming is happening and that human activities contribute to it is the overwhelming consensus of the science community, decades-deep in studies and expertise. That is a fact. I’ve heard and considered the proposition that all the scientists could be wrong — doggedly fixed on conclusions preordained by their funding sources, or maybe seduced by the drama of an end-of-days scenario. I’ve also heard the argument that the best minds of the sixteenth century insisted that the earth sits at the center of the solar system — this after getting past the flat-horizon-ergo-flat-earth thing — and then there’s the one about Aristotle asserting that men have more teeth than women.  All this I translate as warnings to receive all “scientific truths” with skepticism. Fair enough. But when I see global warming portrayed as nothing more than a sociocultural scrimmage being played out in the media, the audacity awes me — and not in a good way. Like questions about whether the air we breathe gives us asthma or our drinking water leads to dysentery, I have some serious difficulty with the idea that anthropogenic global warming is nothing more than a political personality test: if you believe, you’re a preachy liberal, and if you don’t you’re a me-first conservative. It seems more appropriate to characterize serious environmental concerns as what they are: apolitical survival matters.  Global warming is a survival issue that has been trivialized by politics. We start with that problem.

If global warming is to be taken seriously, then energy diversification must be encouraged. There are additional reasons to explore renewables, starting with the simple premise that diversification is smart, particularly when dealing with crucial public services like energy. Fossil fuels — oil, gas, and coal — long recognized as magical decoctions that juice industrial development and spread creature comforts to all, and thus long subsidized by the federal government, are also prime emitters of the greenhouse gases that now swaddle the earth and contribute to the temperature boost that, in turn, boosts the ferocity of storms, fires, floods, and other catastrophic incidents that we can no longer fairly dub “acts of God.” Although realistic energy policymakers may agree that substituting wind, solar, wave, and other forms of renewable energies for non-renewables can only be engineered in phases, even the most patient earth advocate balks at the prospect of new sources and forms of oil that increase pollution acutely in their very extraction, transport, and refining. This is where Keystone XL comes in, because Keystone XL incentivizes the growth of the tar sands industry, threatening U.S. and Canadian environmental resources as well as the earth’s temperature.

Tar sands are aptly named. They are dense pockets of sand, clay and sticky, thick bitumen that must be strip-mined, mined from open pits, or treated in situ to extract a heavy, corrosive crude.  The Canadian company TransCanada mines tar sands in northern Alberta, then processes it to render it liquid enough to flow through a pipeline. After transport, further refining is necessary. These extraction and refining processes all inflict deadlier environmental costs than even traditional petroleum extraction. In Canada, the tar sands industry is destroying an area of Boreal forest, killing nesting migratory bird and other species habitats, producing vast tailing ponds filled with toxic stew, polluting waterways with lead, mercury, and arsenic, and likely causing a spike in cancer rates among First Nations peoples living downstream.

Keystone XL represents a significant step-up in tar sands oil production, but not its introduction. TransCanada has been piping tar sands into the United States since 2010.  The original Keystone pipeline runs east through Canada, turns south to enter North Dakota, and delivers oil for refining to locations in Illinois, Oklahoma, and Texas. Keystone XL is designed as a major shortcut, aiming to connect existing pipeline at a juncture in Alberta to a juncture where existing Keystone pipeline crosses from Nebraska into Kansas.  Picture the numeral 7 — the existing pipeline — with the two ends connected by XL.  If built, Keystone XL will cross the U.S. border in Montana, travel southeasterly through South Dakota and Nebraska, meet up with the current Keystone system to head south through Kansas and into Oklahoma, where the latest constructed part of the project will carry the oil to points in Texas near Gulf of Mexico ports.

Because the Keystone XL pipeline will cross a U.S. border, it requires a presidential permit, which in turn necessitates a U.S. Department of State determination that the pipeline construction and operation are in the national interest. To aid in this determination, the State Department completed a National Environmental Policy Act (NEPA) environmental impact review (EIS), along with reviews under several other U.S. laws. According to NEPA and its regulations, an EIS must present a full and fair discussion of environmental effects of a proposed action, including discussion of alternatives to the proposed action and discussion of both immediate and long-term impacts and direct and cumulative impacts of the project. If new plans or information emerge during the course of a project, NEPA requires supplemental impact analyses (SEIS). All this is often summed up as an expectation that the acting agency take a “hard look” at all environmental impacts. Of particular relevance to the latest Keystone XL court decision, any supplemental EIS must present the acting agency’s justification for any reversal of a decision documented in a prior record of decision (ROD), through which agencies announce their EIS-based conclusions.

Environmental impacts studied by the State Department in its Keystone XL EIS, including the pipeline’s disruption of agricultural activities and its potential for rupture, are neither fanciful nor frivolous. In 2010 alone, pipeline ruptures spilled 1 million gallons of Canadian tar sands oil into Michigan’s Kalamazoo River, 275,000 gallons near Chicago, and 126,000 gallons in North Dakota. Less calamitous leaks are common. Of particular concern, therefore, is the fact that Keystone XL will slice through the Oglala Aquifer, the agricultural heartland’s primary freshwater system that supplies drinking water for millions of Americans and provides 30 percent of the country’s irrigation.  In addition to the threats to water systems, tar sands refining emits more sulfur, nitrogen, lead, nickel, mercury, arsenic, ammonia, sulfur dioxide and nitrous oxide than conventional crudes, thus contributing to both acid rain and other airborne health threats in both Canada and the U.S.

As the Keystone XL project has evolved, the State Department has completed a number of SEIS’s. One significant alteration included changing the pipeline route through Nebraska due to state concerns over the threat to the Oglala Aquifer. In 2015 the Department issued a ROD rejecting the project on various grounds, including the leadership role the U.S. plays in global warming responsiveness.  In 2017 the new administration reversed this decision, citing a shift in U.S. priorities from climate change leadership to energy security and economic development. The about-face, the administration has explained, is as simple as a reprioritization of American interests as reflected in the 2016 election.

It is certainly true that Presidents may reverse policies of their predecessors where law allows, and it is true that the Keystone XL project’s already-existing symbolic value was solidified during the 2015 presidential campaign, during which the very term became synonymous with contending political philosophies until Keystone XL seemed no less than a battle between doomsday fanaticism and the fantasy of energy independence. Liberals and environmentalists decried the perversity of reversing clean energy progress and denounced the project as a tribute to cavalier greed. Conservatives bristled at the very idea of anthropogenic global warming, parading out the few scientists willing to doubt the evidence even as they touted the temporary construction jobs the pipeline would create.  The blunt force of the new President’s disdain for climate concerns and for the global community generally — illustrated by his oft-repeated campaign promise to withdraw from the 2015 U.N. Framework Convention on Climate Change Paris Agreement (a promise kept) as well as his persistent tweets equating climate and weather — only underscores and supports the State Department’s Keystone XL reversal.  After all, a country with an anti-environmentalist President must crave anti-environmentalist policies.

Regardless of the political logic behind reviving Keystone XL, environmental groups have mounted a court challenge to the State Department’s 2017 reversal of its prior Keystone XL ROD, and that challenge has scored a recent victory.  On November 8, 2018, U.S. District Court Judge for the District of Montana Brian Morris issued an opinion and order in Indigenous Environmental Network v. U.S. Department of State.  The lengthy, detailed decision affirms numerous elements of the State Department’s NEPA review. It finds its alternatives analysis compliant, its responses to public comments adequate, and its incorporation of analyses from a Canadian study of environmental impacts consistent with NEPA.  Nevertheless, the court identified a number of areas in which the State Department’s latest SEIS fell short of the “hard look” NEPA requires. According to the court, the State Department gave inadequate attention to both the effect of current oil prices on the viability of the project and the cumulative effects of greenhouse gas emissions from the various TransCanada pipeline expansions. Further, the State Department ignored potential impacts on cultural resources that prior iterations of the EIS had failed to address, and it neglected to update a section on oil spill modeling and mitigation measures.  Such omissions, the court determined, warranted a remand with instructions to address these and other issues.

Overall, Judge Morris concluded that the State Department relied on little more than political discretion to account for its reversal of the 2015 ROD.  Here, as in the more detailed criticisms of the 2017 SEIS listed above, Judge Morris was dead right.  As any student studying administrative law knows, the reversal of an agency decision that had been produced with the depth, public discourse, and significance of the Keystone XL ROD requires, as a matter of both law and simple logic, more than a cursory or purely political explanation. Even agencies exercising highly discretionary decision-making powers may not disregard documented factual findings or ignore pertinent developments occurring since their prior determination.  This has been clear since 1983, when the Court decided Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.

The District Court vacated the 2017 ROD and remanded the matter to the State Department for its further consideration consistent with the court’s opinion. It is conceivable that the State Department will reach the identical conclusion after a period of study. At the very least, however, the court affirms both the gravity of the EIS requirement and the premise that the judiciary monitors government agencies for their genuine attention to the values that animate the legislation mandating reasoned environmental decision-making.

Professor Peter Manus teaches Administrative Law, Contemporary Property Concepts, Environmental Advocacy, Environmental Justice, Environmental Law, Environmental Theory and Politics, and Property at New England Law | Boston.

.