Wednesday, September 12, 2018

Shale Law in the Spotlight: Overview and Timeline of Legal Developments Relating to the Keystone XL Pipeline

Written by Chloe Marie - Research Fellow

The Keystone XL pipeline is a long-standing project involving both Canada and the United States that was initially proposed by TransCanada Corporation in 2008. The current project aims to enhance the U.S. pipeline infrastructure grid and upgrade the existing Keystone Pipeline System that went into service in July 2010. The Keystone Pipeline System currently transports approximately 600,000 barrels of crude oil per day from Hardisty, in Alberta, Canada to U.S. refineries located in Illinois, Texas, and Oklahoma. The proposed Keystone XL pipeline will extend and connect with the existing pipeline system in Hardisty, Alberta to deliver oil directly to Steele City, Nebraska through the states of Montana and South Dakota. 

TransCanada Keystone Pipeline L.P. filed an application for a Presidential Permit to construct and operate the proposed Keystone XL pipeline project on September 19, 2008. Subsequently, the U.S. Department of State issued a Draft Environmental Impact Statement (EIS) for public review in April 2010, and a supplemental draft EIS was published in April 2011. The final EIS was issued on August 26, 2011. In a Press Release dated the same day, TransCanada’s president and chief executive officer declared that “the Final Environmental Impact Statement reaffirms the findings of the two previous environmental impact statements that the Keystone XL pipeline will have no significant impact on the environment.” 

Owing to community concerns regarding the impacts of the proposed pipeline route on sand dunes located in north-central Nebraska - also known as the Sand Hills - President Barack Obama denied the Keystone XL pipeline presidential permit in January 2012 as recommended by the U.S. Department of State. The State Department stated that the 60 days allotted to review whether the proposed Keystone XL pipeline project is in the national interest was not enough time in this particular case. 

On May 4, 2012, TransCanada filed another Presidential Permit application for the construction and operation of crude oil transportation facilities from Canada to the United States. Again, the State Department denied the Presidential Permit application on November 23, 2015, stating that such project would not serve the national interest. U.S. Secretary of State John Kerry pointed out that “granting a Presidential Permit for this proposed Project would undermine U.S. climate leadership and thereby have an adverse impact on encouraging other States to combat climate change and work to achieve and implement a robust and meaningful global climate agreement.” 

Following the presidential transition in the United States, the administrative policy towards the pipeline project shifted. TransCanada again submitted a Presidential Permit application to the U.S. Department of State shortly after President Donald Trump signed a Presidential Memorandum on January 24, 2017, “invit[ing] TransCanada Keystone Pipeline, L.P. (TransCanada), to promptly re-submit its application to the Department of State for a Presidential permit for the construction and operation of the Keystone XL Pipeline, a major pipeline for the importation of petroleum from Canada to the United States.” On March 23, 2017, the State Department granted the Presidential Permit application declaring the project to be in the national interest emphasizing that such project has the potential to significantly improve infrastructure and supply of crude oil while creating new jobs and providing increased revenues to local communities.

On March 30, 2017, six environmental groups, including the Northern Plains Resource Council, Center for Biological Diversity, and Sierra Club filed a complaint against the Trump administration challenging the approval of the proposed Keystone XL pipeline project. They alleged that the State Department “ignored significant new information that bears on the project’s threats to the people, environment, and national interests of the United States” and asserted that the administration had relied on “an arbitrary, stale, and incomplete environmental review” to reverse the prior determination that the project was not in the national interest.

On February 9, 2018, plaintiffs filed a motion for summary judgment claiming that the State Department should have prepared a supplemental EIS before approving the Keystone XL pipeline project in 2017, and thus violated the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and Administrative Procedure Act (APA). On August 15, 2018, the U.S. District Court for the District of Montana ordered the State Department to provide further environmental analysis of the proposed project and, consequently, vacated the Presidential Permit at this time.  

Additional information on Northern Plains Resource Council et al. v. Shannon et al. in the U.S. District Court for the District of Montana (Great Falls Division) is available at Docket no. 4:17-cv-00029.


This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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