Wednesday, February 1, 2017

Shale Law in the Spotlight: President Trump’s Memoranda relating to the Keystone XL and Dakota Access Pipeline construction projects

On January 24, 2017, during the first week of his term in office, President Donald Trump published two Presidential Memoranda announcing his intention to revisit the Keystone XL and Dakota Access pipeline projects that were turned down under the Obama administration.

The Keystone XL pipeline is intended to connect Hardisty, in east-central Alberta, Canada, with Steele City, Nebraska, for the transportation of crude oil to the Gulf of Mexico.  Supporters of the project focus on its benefits to U.S. infrastructure and local jobs. The project was, however, terminated by President Barack Obama in November 2015. In a presidential statement dated November 6, 2015, President Obama announced that he agreed with the State Department’s decision that “after extensive public outreach and consultation with other agencies” the Keystone XL Pipeline would “not serve the national interest of the United States.”

Among the reasons advanced for the rejection, President Obama explained that the Keystone Pipeline project is inconsistent with the government’s continuous efforts to halt climate change. He also stated that “[t]he pipeline would not make a meaningful long-term contribution to [the U.S.] economy.” Previously, in February 2015, President Barack Obama had vetoed the bill approving the Keystone XL pipeline project on the grounds that this was a Congress’ attempt “to circumvent longstanding and proven processes for determining whether or not building and operating a cross-border pipeline serves the national interest.”

In his Presidential Memorandum, President Trump invited TransCanada Corporation to resubmit its application regarding construction of the pipeline to the Department of State for a presidential permit review. President Trump also stated that the Final Supplemental EIS for the Keystone XL Project released in 2014 would be considered by the Department of State when reviewing TransCanada’s application for a presidential permit. On January 26, 2017, TransCanada Corporation announced that it has submitted a new application and declared that “[t]he project is an important new piece of modern U.S. infrastructure that secures access to an abundant energy resource produced by a neighbor that shares a commitment to a clean and healthy environment.”

As for the Dakota Access Pipeline, the project includes the construction of a 1,173-mile pipeline to ship crude oil from the North Dakota Bakken region through South Dakota and Iowa into existing pipelines in Illinois. According to Dakota Access, LLC, 90% of the Dakota Access Pipeline has been completed so far. On December 4, 2016, the U.S. Army announced that it would not be granting Dakota Access, LLC, an easement allowing the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota. In a memorandum to the U.S. Army Corps of Engineers, U.S. Assistant Secretary of the Army Jo-Ellen Darcy declared that “a decision on whether to authorize the Dakota Access Pipeline to cross Lake Oahe at the proposed location merits additional analysis, more rigorous exploration and evaluation of reasonable siting alternatives, and greater public and tribal participation and comments.” On January 18, 2017, the U.S. Army published in the Federal Register a Notice of Intent to Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC’s Request for an Easement to Cross Lake Oahe, North Dakota. The aim is to identify reasonable alternatives to the route proposed.

In his Presidential Memorandum, President Trump stated that he “believe[s] that construction and operation of lawfully permitted pipeline infrastructure serve the national interest,” and, thus, requested the U.S. Army Corps of Engineers to accelerate its review process for the construction and operation of the Dakota Access pipeline. In addition, President Trump asked the U.S. Army Corps of Engineers to reconsider U.S. Assistant Secretary of the Army, Jo-Ellen Darcy’s 2016 memorandum as well as the Corps’ Notice of Intent to prepare a new EIS. 

Interestingly, in a statement released on January 31, 2017, U.S. Senator for North Dakota, John Hoeven, stated that “the Acting Secretary of the Army Robert Speer informed us that he has directed the Army Corps of Engineers to proceed with the easement needed to complete the Dakota Access Pipeline.” U.S. Senator John Hoeven also added that “[t]his will enable the company to complete the project, which can and will be built with the necessary safety features to protect the Standing Rock Sioux Tribe and others downstream.”

On January 24, 2017, President Trump also announced that “[t]he Secretary of Commerce . . . shall develop a plan under which all new pipelines, as well as retrofitted, repaired, or expanded pipelines, inside the borders of the United States, including portions of pipelines, use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law.” This plan should be made available in July 2017.

Continued development on these matters is to be expected, stay tuned!

Written by Chloe Marie - Research Fellow

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