The Washington Ending

Late last Fall, I found myself driving a stretch of the Keystone Pipeline route through the Kansas prairie. I was thinking of family farms and ranches, mortgages and small business loans, Big Ag, jobs in the energy industry, climate change, and the hour drive to the bounty of Walmart, when I turned off the main road and left all semblance of traffic. The land was quiet and sparsely populated. A few miles down a dirt road I found the signs marking the Keystone Pipeline as it cut through cattle pasture and fields of silage. TC Energy (formerly TransCanada) had secured leases from the landowners, often through threat of eminent domain, to cross the continent from Alberta, Canada to the Gulf Coast of Texas. One could easily see the attraction of right-of-way royalties to landowners.

A downpour suddenly appeared, turning my leisurely drive along the muddy backwater into a slow motion fishtail. For the next mile, I feathered the gas, corrected the wheel, and stayed off the brake until I returned to the security of the asphalt. With the drivetrain continuing to struggle I pulled to the shoulder, where I discovered the wheel wells packed to the treads with clay. Over the next hour, in the rain, I used a trowel and screw driver to carve away at the thick sediment encasing the tires, brakes, and hubs. Nearly everyone that passed –a dozen locals or so, stopped and offered assistance.

“Nah, I got it, but thanks. I’ve never seen so much mud.”

Smiling, one woman said, “You’re better sticking to the pavement out here.”

With the cancellation of the Keystone XL cross-border permit last year, the Center for Biological Diversity and I decide to settle our FOIA case with the Department of State (DOS). While we were unsatisfied with the material turned over during the lengthy document production process, we were resigned that pursuing the release of milepost data had become academic –and potentially counter-productive should a court set a negative precedent and declare that the location of a transnational oil pipeline is proprietary business information.

Readers of this blog will know that I filed my first FOIA request for Keystone XL Pipeline digital mapping data with the DOS in 2012, when I realized that the pipeline’s proposed route couldn’t be determined from the project’s environmental impact statement (EIS). Although the milepost markers defining the route were referenced tens of thousands of times throughout the EIS, nowhere did the report reveal the actual locations of these markers, not even in the technical drawings and maps. In subsequent revisions of the EIS, even the electronic versions (PDFs) of the maps were excluded. Paradoxically, the EIS included location data for water and gas wells in North Dakota —a state the Keystone XL didn’t cross. Evidently, TC Energy and DOS didn’t think anyone would actually be reading the EIS.

When I initially approached TC Energy about the mapping data, they told me that the information was withheld for national security reasons. “They could impact it,” said Terry Cunha, TransCanada’s Manager of Stakeholder Relations. “They could drop a backhoe on top of it.” Another PR person told me that if I really needed digital data, I could overlay the PDFs onto satellite imagery.

I called the Federal Energy Regulatory Commission (FERC) in Washington D.C. and they confirmed that the Keystone XL pipeline location data was public information and, in fact, would be marked on the ground with stakes, putting in doubt TC Energy’s stated rationale to protect the pipeline for national security reasons and from flying backhoes.

It appears more likely that the reason for withholding the location data was to protect TC Energy’s investors. Unable to convince many landowners that this pipeline qualified as a public utility or critical infrastructure, the company resorted to eminent domain to secure right-of-way across the continent. Key proponents of the project were American billionaires and Canadian petroleum suppliers. Keystone XL was designed to utilize specialized refineries in Minnesota and the Gulf Coast, from where the petroleum products, mostly diesel, could be shipped to foreign markets, primarily China. As an additional benefit to producers, gasoline prices in the American Midwest would increase, bringing them into equilibrium with the rest of the country. When TC Energy spun off the Keystone XL’s Oklahoma-Texas segment in 2014 as the Gulf Coast Extension and the US Army Corps of Engineers (USACE) controversially authorized its construction, the industry was keen to correct the price differential between Midwest and Gulf Coast oil supply.

Eventually, US domestic demand for oil would fall and Congress would rescind the 1975 US oil export ban and open foreign markets to US suppliers. As of December 2021, American oil pipeline capacity was in surplus and Alberta was running a $100B taxpayer-funded debt financing the tar sands.

In 2013, I turned my attention to the DOS, who told me that they didn’t have the mapping data, nor was TC Energy or Cardon ENTRIX, the firm producing the EIS, required to supply it. This was hard to believe. How could the DOS produce an environmental impact statement without knowing where the project was sited?

After more delays and an appeal, DOS conceded in late 2014 that they had the data but that it didn’t belong to them. This didn’t make sense as the contract included with the EIS showed that the DOS owned all the data used to produce their reports. I filed another FOIA request for all contracts and correspondence. Ultimately, the DOS wasn’t been able to produce anything to support their claim.

In 2017, the Center for Biological Diversity stepped in and joined me in a FOIA lawsuit against the DOS. After an exhaustive refiling and years of back and forth, DOS produced a tranche of highly redacted documents and leaned on exemptions to prevent further disclosures. Their final gambit was to conflate the Montana, South Dakota, and Nebraska route data released previously by the US Fish and Wildlife Service, with the Montana to Texas Gulf Coast data required by multiple EIS reports and revisions. In essence, DOS disregarded the whole point of the original FOIA: that of interpreting the EIS and its various permutations.

The most revealing document from this process of DOS disclosures was a FOIA request filed by a former TransCanada design engineer who was seeking all technical drawings authorized under his name after he had left the company. This engineer learned that, after his departure, his name was continuing to be used to sign off on drawings and, further, that other drawings were being certified by individuals not authorized to do so. I have filed an additional FOIA for the documents produced under this request, but due to “immigration cases and COVID,” DOS says it could be years before they respond. The glacial pace at which DOS responds to FOIA effectively stymies public disclosure. Previously, my requests were delayed when, I was told, requests for former Secretary Clinton’s government emails found on a private server were overwhelming staff. On another occasion, DOS would claim that my case could not be worked on because staff were quitting and not being replaced.

Soon after taking office in 2017, President Trump reversed President Obama’s 2015 Keystone XL cross-border permit denial. The following year, a US District Court would reject the 2014 EIS and direct DOS to evaluate the extraordinary changes in the oil market, consider climate impacts, study cultural resources along the route, and evaluate risks of oil spills on water and wildlife.

When Trump reissued the Presidential permit in 2019 and construction began in 2020, TC Energy and DOS got another stab at the EIS process –a period during which only cooperating tribes were offered mapping data. Ultimately, it was a case brought by the Northern Plains Resource Council, a group founded by Montana ranchers, that reversed the project’s authorization, finding that in doing so DOS had violated the Endangered Species Act. In July of 2020 the US Supreme Court agreed. President Biden would kill the project altogether immediately upon taking office in 2021.

From my calls and emails to TC Energy, DOS, and stakeholders, it seems possible that the milepost data never left TC Energy’s offices. Clearly, TC Energy and the DOS felt comfortable publishing a nonsensical EIS without the necessary data to evaluate it. At the onset, early in my FOIA inquiries, one DOS employee told me privately that it was politics, not empirical review, that was driving the authorization. It remained so until the end. In that game, the communities, landowners, and tribes of the Midwest were always going to place second to the industry that has underpinned the global economy since World War II.

Now that the Keystone XL has become untenable, both TC Energy and the Canadian province of Albert have decided to separately sue the US Government for NAFTA damages –TC Energy is asking $15 Billion and Alberta $1.3 Billion. Alberta’s Minister of Energy, Sonya Savage, reduced the project’s worth to that of a bureaucratic point of disagreement, stating, “After examining all available options, we have determined a legacy claim is the best avenue to recover the government’s investment in the Keystone XL project.”

Developments in Ukraine and Russia are unlikely to change this calculus, but this will not stop proponents from blaming the permit cancelation for increasing gas prices. Since the Keystone XL was never operational, it never had an impact on global oil supplies. Regardless, the pipeline was never intended to supply gasoline to US markets and, thus, any impact on future US gas prices would have been incidental. As for the impact of sanctions on Russia, it’s been clear for over 50 years that an over-dependence on fossil fuels has a destabilizing effect across the globe.

The Keystone XL was always a slippery slope. Without community support it has been forced to rely on obfuscation, lack of transparency, litigation, and intimidation. In that respect, a little “sunshine” may have gotten us back to the pavement.

IL FOIA – Map Update: Dakota Access Discharge Wells

With the public release of the Illinois Dakota Access Water Pollution Control Permit, additional Dakota Access pipeline route data has now become available. Added to the route data are Illinois hydrostatic test water discharge locations. More information on these discharge locations can be found in the IL-EPA Water Pollution Control Permit. Below please find a link to the updated Dakota Access Pipeline route map, as well as the IL-EPA Water Pollution Control Permit.

Meanwhile, efforts to obtain route information from the state of North Dakota have been exhausted and have not yielding any route data.

The Dakota Access Pipeline is a proposed pipeline running from the Bakken oil fields in North Dakota to Patoka, Illinois. Dakota Access, a subsidiary of Energy Transfer Partners and Phillips 66, received Federal approval for the project in the form of a Nationwide Permit 12 from the United States Army Corp of Engineers (USACE) in July of 2016. Eminent domain lawsuits have slowed state approvals.

On September 9, 2016, the Department of Justice, the Department of the Army and the Department of the Interior released a joint statement regarding the court case Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, effectively halting construction at Lake Oahe, on the Missouri River in North Dakota. The statement reads:

FOR IMMEDIATE RELEASE

Friday, September 9, 2016

Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers

The Department of Justice, the Department of the Army and the Department of the Interior issued the following statement regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers:

“We appreciate the District Court’s opinion on the U.S. Army Corps of Engineers’ compliance with the National Historic Preservation Act.  However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain.  Therefore, the Department of the Army, the Department of Justice, and the Department of the Interior will take the following steps.

“The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

“Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

“Finally, we fully support the rights of all Americans to assemble and speak freely.  We urge everyone involved in protest or pipeline activities to adhere to the principles of nonviolence.  Of course, anyone who commits violent or destructive acts may face criminal sanctions from federal, tribal, state, or local authorities.  The Departments of Justice and the Interior will continue to deploy resources to North Dakota to help state, local, and tribal authorities, and the communities they serve, better communicate, defuse tensions, support peaceful protest, and maintain public safety. 

“In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”

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