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Legal Case: White House Argues Against Considering Climate Change on Energy Projects

Just over a month before the United Nations convenes on September 23 in New York City to discuss climate change and activists gather for a week of action, the Obama White House Council on Environmental Quality (CEQ) argued it does not have to offer guidance to federal agencies it coordinates with to consider climate change impacts for energy decisions.

It came just a few weeks before a leaked draft copy of the Intergovernmental Panel on Climate Change's (IPCC) latest assessment said climate disruption could cause “severe, pervasive and irreversible impacts for people and ecosystems.”

Initially filed as a February 2008 petition to CEQ by the International Center for Technology Assessment, the Sierra Club and the Natural Resources Defense Council (NRDC) when George W. Bush still served as President, it had been stalled for years. 

Six and a half years later and another term into the Obama Administration, however, things have finally moved forward. Or backwards, depending on who you ask. 

NEPA and CEQ

The initial February 2008 legal petition issued by the plaintiffs was rather simple: the White House's Council for Environmental Quality (CEQ) should provide guidance to federal agencies it coordinates with to weigh climate change impacts when utilizing the National Environmental Policy Act (NEPA) on energy policy decisions. 

A legal process completely skirted in recent prominent tar sands pipeline cases by both TransCanada and Enbridge, NEPA is referred to by legal scholars as the “Magna Carta” of environmental law.

Magna Carta; Photo Credit: Wikimedia Commons

CEQ oversees major tenets of environmental, energy and climate policy. It often serves as the final arbiter on many major legislative pushes proposed by Congress and federal agencies much in the same way the White House's Office of Information and Regulatory Affairs (OIRA) does for regulatory policy. 

State Dept. Overseers of Contentious Enbridge Tar Sands Pipeline Workaround Have Industry, Torture Ties

The Sierra Club, National Wildlife Federation (NWF) and other green groups recently revealed that pipeline giant Enbridge got U.S. State Department permission in response to its request to construct a U.S.-Canada border-crossing tar sands pipeline without earning an obligatory Presidential Permit.

Enbridge originally applied to the Obama State Department to expand capacity of its Alberta Clipper (now Line 67) pipeline in November 2012, but decided to avoid a “Keystone XL, take two” — or a years-long permitting battle — by creating a complex alternative to move nearly the same amount of diluted bitumen (“dilbit”) across the border.

The move coincides with the upcoming opening for business of Enbridge's “Keystone XL” clone: the combination of the Alberta Clipper expansion (and now its alternative) on-ramp originating in Alberta and heading eventually to Flanagan, Ill., the Flanagan South pipeline running from Flanagan, Ill. to Cushing, Okla. and the Cushing, Okla. to Port Arthur, Texas Seaway Twin pipeline.

Together, the three pieces will do what TransCanada's Keystone XL hopes to do: move dilbit from Alberta's tar sands to Port Arthur's refinery row and, in part, the global export market.

Environmental groups have reacted with indignation to the State Department announcement published in the Federal Register on August 18. The public commenting period remains open until September 17.

Jim Murphy, senior counsel for NWF, referred to it as an “illegal scheme,” while a representative from 350.org says Enbridge has learned from the lessons of its corporate compatriot, TransCanada.

“When we blocked Keystone XL, the fossil fuel industry learned that they have a much stronger hand to play in back rooms than on the streets,” said Jason Kowalski, policy director for 350.org. “They will break the law and wreck our climate if that's what it takes for them to make a buck.”

But as the old adage goes, it takes two to tango. 

That is, influential State Department employees helped Enbridge find a way to smuggle an additional 350,000 barrels of tar sands per day across the border without public hearings or an environmental review. 

Court: Key Environmental Law Doesn't Apply to Part of Enbridge Keystone XL "Clone"

Keystone XL Clone Flanagan South

A U.S. District Court for the District of Columbia has ruled that Enbridge’s 600-mile-long Flanagan South Pipeline, a Keystone XL “clone,” is legally cleared to proceed opening for business in October

Approved by the U.S. Army Corps of Engineers via a controversial regulatory mechanism called Nationwide Permit 12 (NWP 12), Judge Kentanji Brown Jackson, an Obama-appointed judge, ruled NWP 12 was not a federal government “action.” Thus, Brown posited that Enbridge did not need to use the National Environmental Policy Act (NEPA) regulatory process and NWP 12 was up to snuff.

The case pitted the Sierra Club and the National Wildlife Federation (NWF) against the Army Corps of Engineers and Enbridge and has lasted for just over a year, with the initial complaint filed on August 13, 2013 (Case #: 1:13-cv-01239-KBJ). 

Sierra Club and NWF submitted the recent precedent-setting Delaware Riverkeeper v. Federal Energy Regulatory Commission (FERC) case as supplemental authority for Sierra Club v. U.S. Army Corps of Engineers on the day that decision was handed down. 

But Jackson brushed it aside, saying it doesn't apply to Flanagan South, despite the fact that the Delaware Riverkeeper v. FERC decision said that a continuous pipeline project cannot be segmented into multiple parts to avoid a comprehensive NEPA review.

Although Enbridge will operate this project as a single pipeline, Flanagan South was broken up into thousands of “single and complete” projects by the Army Corps of Engineers. This helped Enbridge skirt the requirement of a more comprehensive and public-facing NEPA review, which involves public hearings and a public comment period.

“Here, not only was there no NEPA analysis of this massive project, there was never any public notice or opportunity for involvement before it was constructed across four states,” Sierra Club attorney for the case, Doug Hayes, told DeSmogBlog. “The entire thing was permitted behind closed doors.”

For all intents and purposes, then, Flanagan South is a fait accompli and tar sands diluted bitumen (“dilbit”) will begin pumping through it as summer turns to fall. 

Investor Call: Enbridge's Keystone XL Clone Opens in October, Rail Facility to Follow

In a recent quarter two call for investors, Enbridge Inc executives said the company's “Keystone XL” clone — the combination of the Flanagan South and Seaway Twin pipelines — will open for business by October.

As previously reported by DeSmogBlog, Enbridge has committed a “silent coup” of sorts, ushering in its own Alberta to Port Arthur, Texas pipeline system “clone” of TransCanada's Keystone XL tar sands pipeline. Unlike Keystone XL's northern leg, however, Enbridge has done so with little debate. 

With the combination of the Alberta Clipper (now called Line 67, currently up for expansion), Flanagan South and Seaway Twin pipelines, Enbridge will soon do what TransCanada has done via its Keystone Pipeline System.

That is, bring Alberta's tar sands to Gulf of Mexico refineries and send it off to the global export market.

According to Guy Jarvis, president of liquids pipelines for Enbridge, even though the Cushing, Oklahoma to Port Arthur, Texas Seaway Twin is technically operational, it will not become functional until Flanagan South opens in October. 

“The base plan had been, and still is, to do the line fill of the Seaway Twin from Flanagan South. So we don't expect to see too much off the Seaway Twin until Flanagan South does go into service,” Jarvis said on the investor call.

“It does have the capability to be line filled at Cushing if the barrels are available and the market signals would suggest that you would want to do that. But at this point in time, we think it will be the base plan that it is filled on from Flanagan South.”

Beyond piping diluted bitumen (“dilbit”) to market, Enbridge also has plans to market dilbit via rail in a big way.

Documents: Cheniere Fuels ALEC’s New Push for Fracked Gas Exports

Today, legislative and lobbyist members of the American Legislative Exchange Council (ALEC) voted on model legislation promoting both exports of gas obtained via hydraulic fracturing (“fracking”) and vehicles powered by compressed natural gas (CNG)

Dubbed a “corporate bill mill” by its critics, ALEC is heavily engaged in a state-level effort to attack renewable energy and grease the skids for exports of U.S. oil and gas. Today's bills up for a vote — as conveyed in an ALEC mailer sent out on June 25 by ALEC's Energy, Environment and Agriculture Task Force — are titled “Resolution In Support of Expanded Liquefied Natural Gas Exports“ and “Weights and Measures and Standards for Dispensing CNG and LNG Motor Fuels.” 

An exclusive investigation conducted by DeSmogBlog reveals that Cheniere — the first U.S. company to receive a final liquefied natural gas (LNG) export permit by the U.S. Federal Energy Regulatory Commission (FERC) — has acted as the lead corporate backer of the LNG exports model resolution. 

Further, Clean Energy Fuels Corporation, owned by energy baron T. Boone Pickens, of Pickens Plan fame, and trade associations it is a member of, served as the main pusher of the CNG model resolution.

ALEC has served as a key vehicle through which the fracking industry has curried favor and pushed for policies favorable to their bottom lines in statehouses nationwide. Now ALEC and its corporate backers have upped the ante, pushing policies that will lock in downstream demand for fracked gas for years to come. 

With Cheniere becoming an ALEC dues-paying member in May 2013 and with America’s Natural Gas Alliance (ANGA) — the fracking industry's tour de force — crowned an ALEC member in August 2013, it looks like many more fracking-friendly model bills could arise out of ALEC in the months and years ahead.

Recent Federal Court Decision Could Muddy Waters for Keystone XL South, Flanagan South

On June 6, the U.S. Court of Appeals for the District of Columbia Circuit handed down a ruling that will serve as important precedent for the ongoing federal legal battles over the Keystone XL and Flanagan South tar sands pipelines.

In the Delaware Riverkeeper v. Federal Energy Regulatory Commission (FERC) case, judges ruled that a continuous pipeline project cannot be segmented into multiple parts to avoid a comprehensive National Environmental Policy Act (NEPA) review. This is what Kinder Morgan proposed and did for its Northeast Upgrade Project.

As reported on DeSmogBlog, the U.S. Army Corps of Engineers did the same thing to streamline permitting for both the southern leg of TransCanada's Keystone XL and Enbridge's Flanagan South. Sierra Club and co-plaintiffs were denied injunctions for both pipelines in October and November 2013, respectively.

Delaware Riverkeeper v. FERC dealt with breaking up a new 40-mile long pipeline upgrade into four segments. For the other two cases, the Army Corps of Engineers shape-shifted the two projects — both hundreds of miles long each — into thousands of “single and complete” projects for permitting purposes.

On the day of the Delaware Riverkeeper v. FERC decision, Sierra Club attorney Doug Hayes submitted the case as supplemental authority for the ongoing Flanagan South case.

On May 5, Hayes also submitted paperwork to appeal the Keystone XL South decision in front of the U.S. Court of Appeals for the Tenth Circuit, which was docketed by the clerk of Ccurt the next day.

Hayes told DeSmogBlog his side will file an opening brief for the appeal on July 30. It seems likely Delaware Riverkeeper v. FERC will be a key part of that appeal.

In a sign of the importance of the outcome for the oil and gas industry, the American Petroleum Institute (APIentered the Sierra Club v. Army Corps of Engineers case on Keystone XL as an intervenor on May 16, represented by corporate law firm Hunton & Williams.

At the federal level, Hunton & Williams lobbies on behalf of Koch Industries, a company with a major stake in tar sands leases and refining.

Silent Coup: How Enbridge is Quietly Cloning the Keystone XL Tar Sands Pipeline

While the debate over the TransCanada Keystone XL tar sands pipeline has raged on for over half a decade, pipeline giant Enbridge has quietly cloned its own Keystone XL in the U.S and Canada. 

It comes in the form of the combination of Enbridge's Alberta Clipper (Line 67), Flanagan South and Seaway Twin pipelines.

The pipeline system does what Keystone XL and the Keystone Pipeline System at large is designed to do: ship hundreds of thousands of barrels per day of Alberta's tar sands diluted bitumen (“dilbit”) to both Gulf Coast refineries in Port Arthur, Texas, and the global export market.

Alberta Clipper and Line 67 expansion

Alberta Clipper was approved by President Barack Obama and the U.S. State Department (legally required because it is a border-crossing pipeline like Keystone XL) in August 2009 during congressional recess. Clipper runs from Alberta to Superior, Wis.

Map Credit: U.S. Department of State

Initially slated to carry 450,000 barrels per day of dilbit to market, Enbridge now seeks an expansion permit from the State Department to carry up to 570,000 barrels per day, with a designed capacity of 800,000 barrels per day. It has dubbed the expansion Line 67.

As reported on previously by DeSmogBlog, Line 67 is the key connecter pipeline to Line 6A, which feeds into the BP Whiting refinery located near Chicago, Ill., in Whiting, Ind. BP Whiting — the largest in-land refinery in the U.S. — was recently retooled to refine larger amounts of tar sands under the Whiting Refinery Modernization Project.

TransCanada Cries Foul Over New Keystone XL Security Risk Analysis

It doesn’t take much to hurt the dirty energy industry’s feelings.  Less than a day after NextGen Climate released a report detailing the vulnerabilities of the Keystone XL pipeline to a terrorist attack, the company fired back at the group claiming that they were being singled out.

The report was commissioned by NextGen Climate and produced by David Cooper, a retired Command Master Chief Navy SEAL, who was part of the team that took down Osama bin Laden. 

In his report, Cooper lays out some of the easier ways in which a terrorist can take advantage of the pipeline’s vulnerabilities.  He described the pipeline as a “soft target,” meaning that it doesn’t move, it doesn’t change, and there are huge blindspots along the route. 

DeSmogBlog’s Steve Horn spoke with Cooper about the report, and you can read that story here.

Reuters has more:

Attackers could damage remote pump stations along the pipeline's route in the northern Great Plains with just 4 pounds (1.8 kg) of readily available 1960s-era explosives, Dave Cooper, a former Navy Seal, said in the 14-page NextGen report released Wednesday.

NextGen Climate was founded by billionaire and environmental activist Tom Steyer who has been a target of the dirty energy industry since emerging on the political scene where he has vowed to spend millions in the next U.S. elections to unseat climate change denying and anti-environment candidates.  

Steyer’s name being behind the report has opened up the door for attacks from the industry, and TransCanada has wasted no time in trashing the new report. 

According to The Hill, TransCanada rejected the NextGen study, issuing the following statement:

Navy SEAL Commander Behind Bin Laden Killing: Keystone XL Vulnerable To Terrorism

Dave Cooper, Command Master Chief SEAL (Retired) for the Naval Special Warfare Development Group (DEVGRU), has authored a threat assessment concluding TransCanada's Keystone XL tar sands pipeline is potentially at-risk of a terrorism attack. 

In the report, Cooper concluded operational security vulnerabilities for the pipeline have been overlooked by the U.S. government. Cooper —  most famous for overseeing the Abbottabad, Pakistan Osama Bin Laden raid as the commander of Navy SEAL Team Six — wrote the report as a consultant for billionaire Tom Steyer's advocacy group NextGen Climate Action

“The very nature of Keystone XL’s newsworthiness, should it ever be built, increases its attractiveness as a target to terrorists: Keystone XL, aside from being a 'soft' target just like any other pipeline, has a built-in emotional impact that can’t be denied or wished away,” he wrote in the report's introduction.

“That simple fact, a newsworthy proposal that engenders strong passions, should clue in pipeline owners and government officials to the very real possibility of intentional attack.”

For the report, Cooper utilized a “red cell” methodology, parlance for U.S. special operations forces performing pre-mission reconnaissance, using open source data readily available to terrorists on the internet. In so doing, the special operations forces snuff out operational security (“OpSec” in military lingo) weaknesses, which they use as actionable intelligence in defense missions.

In the report, Cooper explained he “designed [the methodology this way] to showcase weaknesses in the current reality by exploiting the same information to which an outside terrorist group would have access.”

Cooper's probe included a due diligence trip out three redacted Great Plains locations*, where Phase I of the Keystone Pipeline System is currently operational (the northern leg of Keystone XL is Phase IV). Going out into the field, Cooper came away shocked by his discoveries.

His findings raise a troubling question: have real Keystone XL terrorism threats been ignored, while non-violent activists have been labeled potential eco-terrorists? Cooper offered his take on this question to DeSmogBlog.

Breaking: TransCanada Shuts Down Southern Leg of Keystone XL Pipeline, Raising “Suspicions”

KXL install in TX copyright Julie Dermansky

TransCanada shut down the southern leg of the Keystone XL (now called the Gulf Coast Pipeline Project) on June 2 for “routine work,” according to Reuters.  

“Pipelines aren't normally shut down for maintenance shortly after being started up. They may have planned it but something is wrong,” an industry insider told DeSmogBlog. “A two day shutdown on a new line raises suspicions.”

The Pipeline and Hazardous Material Safety Administration was unable to provide an answer to DeSmogBlog when asked to confirm if the shutdown was due to routine work today.

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