Emails: How State Department Secretly Approved Expanding Piece of Enbridge's "Keystone XL Clone"

State Department Enbridge Emails

DeSmogBlog has obtained dozens of emails that lend an inside view of how the U.S. State Department secretly handed Enbridge a permit to expand the capacity of its U.S.-Canada border-crossing Alberta Clipper pipeline, which carries tar sands diluted bitumen (“dilbit”) from Alberta to midwest markets. 

The State Department submitted the emails into the record in the ongoing case filed against the Department by the Sierra Club and other environmental groups in the U.S. District Court for the District of Minnesota. Collectively, the emails show that upper-level State Department officials hastened the review process on behalf of Enbridge for its proposed Alberta Clipper expansion plan, now rebranded Line 67, and did not inform the public about it until it published its final approval decision in the Federal Register in August 2014.

According to a March 17, 2014 memo initially marked “confidential,” Enbridge's legal counsel at Steptoe & Johnson, David Coburn, began regular communications with the State Department on what the environmental groups have dubbed an “illegal scheme” beginning in at least January 2014. 

Enbridge State Department Emails
Image Credit: U.S. District Court for the District of Minnesota

Environmental groups have coined the approval process an “illegal scheme” because the State Department allowed Enbridge to usurp the conventional presidential permit process for cross-border pipelines, as well as the standard National Environmental Policy Act (NEPA) process, which allows for public comments and public hearings of the sort seen for TransCanada's Keystone XL pipeline.

Further, the scheme is a complex one involving Enbridge's choice to add pressure pump stations on both sides of the border to two pipelines, Enbridge Line 3 and Enbridge Line 67, to avoid fitting under the legal umbrella of a “cross-border” pipeline.

Hastening the approval process — and thus dodging both the conventional presidential permit and NEPA process — came up in a June 6, 2014 memo written by Coburn and his Steptoe co-counsel Josh Runyan. Enbridge's legal argument centered around ensuring profits for its customers “consistent with its obligations as a common carrier.”

State Department Enbridge Emails
Image Credit: U.S. District Court for the District of Minnesota

BNSF Challenges Lawsuit From Engineer Who Ran For His Life From Exploding Oil "Bomb Train"

Burlington Northern Santa Fe (BNSF) has responded defensively to the oil-by-rail lawsuit filed by former BNSF locomotive engineer Bryan Thompson, a case recently reported on by DeSmogBlog.

BNSF — the top rail carrier of oil obtained via hydraulic fracturing (“fracking”) in North Dakota's Bakken Shale basin — denied all charges. The company also argued that some federal laws protect the company from liability for injuries allegedly suffered by Thompson. 

The  Answer to the Complaint signals the likelihood of a protracted legal battle ahead. Lee A. Miller, a Minneapolis, Minnesota-based attorney representing BNSF against Thompson, filed the company's response in Cass County, North Dakota. 

Miller argued that the damages allegedly suffered by Thompson — which include Post-Traumatic Stress Disorder (PTSD) from living through and running away from the December 2013 Casselton, North Dakota oil train explosion — were “caused or contributed to by Plaintiff's own contributory or sole fault.”

He also argued that the explosion occurred due to “unknown causes for which BNSF is not responsible” and “are the result of acts or omissions of persons, entities, or corporations other than BNSF…over whom” they have “no control or right to control at the time of the alleged incident.”

BNSF Responds to Former Engineer Lawsuit
Image Credit: State of North Dakota District Court; East Central Judicial District

American Legislative Exchange Council Threatens Lawsuit Against Critics Who Point Out ALEC's Climate Denial

The American Legislative Exchange Council (ALEC) has threatened public interest group Common Cause with a lawsuit for pointing out what the public record has made clear: ALEC denies the scientific consensus on climate change.

As first reported by The Washington Post, ALEC's lawyers Alan Dye and Heidi Abegg wrote a cease-and-desist letter to Common Cause president Miles Rapoport. Dye and Abegg demanded that Common Cause stop calling ALEC a cog in the climate denial machine. 

“We demand that you cease making inaccurate statements regarding ALEC, and immediately remove all false or misleading material from the Common Cause, and related, websites within five business days,” they wrote. “Should you not do so, and/or continue to publish any defamatory statements, we will consider any and all necessary legal action to protect ALEC.”

ALEC critics call the organization a “corporate bill mill.” 

Dye and Abegg also demanded an immediate and public retraction of statements the Common Cause has made about ALEC with regards to climate denial.

ALEC Climate Denial Lawsuit

Image Credit: Common Cause

Further, Dye and Abegg argued that ALEC — contrary to the vast amount of evidence collected by those who research the organization — does not deny climate change.

BNSF Engineer Who Manned Exploding North Dakota "Bomb Train" Sues Former Employer

A Burlington Northern Santa Fe (BNSF) employee who worked as a locomotive engineer on the company's oil-by-rail train that exploded in rural Casselton, North Dakota in December 2013 has sued his former employer

Filed in Cass County, the plaintiff Bryan Thompson alleges he “was caused to suffer and continues to suffer severe and permanent injuries and damages,” including but not limited to ongoing Post-Traumatic Stress Disorder (PTSD) issues.

Thompson's attorney, Thomas Flaskamp, told DeSmogBlog he “delayed filing [the lawsuit until now] primarily to get an indication as to the direction of where Mr. Thompson's care and treatment for his PTSD arising out of the incident was heading,” which he says is still being treated by a psychiatrist.

The lawsuit is the first of its kind in the oil-by-rail world, the only time to date that someone working on an exploding oil train has taken legal action against his employer using the Federal Employers' Liability Act.

BNSF Engineer Casselton Lawsuit

Image Credit: State of North Dakota District Court; East Central Judicial District

Purposeful Distraction? Unpacking the Oil Refiners' "Bomb Trains" Lawsuit vs. Warren Buffett's BNSF

On March 13, American Fuel & Petrochemical Manufacturers (AFPM) — the oil refiners' trade association — sued oil-by-rail carrying giant Burlington Northern Santa Fe (BNSF) for allegedly violating its common carrier obligation under federal law. A DeSmogBlog investigation has revealed there may be more to the lawsuit than initially meets the eye.

Filed in the U.S. District Court for the Southern District of Texas, Houston Division, AFPM sued BNSF “for violating its common carrier obligation by imposing a financial penalty” for those carrying oil obtained via hydraulic fracturing (“fracking”) in North Dakota's Bakken Shale basin and other hazardous petroleum products in explosion-prone DOT-111 rail cars.

AFPM's beef centers around the fact that BNSF began imposing a $1,000 surcharge for companies carrying explosive Bakken fracked oil in DOT-111 cars, as opposed to “safer” CPC-1232 cars, at the beginning of 2015.

The Warren Buffett-owned BNSF did so, argues AFPM, illegally and without the authority of the federal government.

“This $1,000 surcharge on certain PHMSA-authorized rail cars breaches BNSF’s common carrier duty to ship hazardous materials under the auspices of PHMSA’s comprehensive regime governing hazardous materials transportation,” wrote AFPM's legal team, featuring a crew of Hogan Lovells attorneys. “Allowing railroads to penalize companies that ship crude oil in federally-authorized rail cars would circumvent PHMSA’s statutory and regulatory process for setting rail car standards for hazardous materials shipments.”

Upon a quick glance, it seems like a fairly straight-forward case of federal law and an intriguing example of an intra-industry dispute. But as recent history has proven, the devil is in the details.

A Record Year of Oil Train Accidents Leaves Insurers Wary

Spurred by the shale drilling rush that has progressed at breakneck speed, the railroad industry has moved fast to help drillers transport petroleum and its byproducts to consumers. Last year, trains hauled over 400,000 carloads of crude oil, up from just 9,500 carloads in 2008, according to railroad industry estimates.  Each carload represents roughly 30,000 gallons of flammable liquids, and some trains haul over 100 oil cars at a time.

But with this fast expansion has come some astounding risks — risks that have insurance companies and underwriters increasingly concerned.

A string of oil train explosions have highlighted the potential for harm. A train hauling 2.9 million gallons of Bakken oil derailed and exploded on November 8 in Aliceville, Alabama, and the oil that leaked but did not burn continues to foul the wetlands in the area.

On December 30th, a train collision in Casselton, North Dakota 20 miles outside of Fargo, prompted a mass evacuation of over half the town’s residents after 18 cars exploded into fireballs visible for miles. 400,000 gallons of oil spilled after that accident, which involved two trains traveling well below local speed limits.

Those crashes are all on the radar of the insurance industry,” attorney Dean Hansell recently told Law360.

All told, railcar accidents spilled more than 1.15 million gallons of crude oil in 2013, federal data shows, compared with an average of just 22,000 gallons a year from 1975 through 2012 — a fifty-fold spike.

Toxic Coal Ash Disposal Proves Costly and Hazardous, Duke Energy's Sutton Lake Contamination Questioned

A new report out from Wake Forest University concludes that coal ash waste from Duke Energy’s Sutton coal plant in Wilmington, NC is elevating levels of selenium pollution in nearby Sutton Lake. The lake, prized by fishermen for its largemouth bass population, has been contaminated, according to a study released today by Prof. Dennis Lemly, Research Associate Professor of Biology at Wake Forest, with high levels of selenium. Selenium has been linked to deformities in fish – including two-headed trout – and can cause a condition known as selenosis if people consume high enough doses in their food or drinking water.

Several conservation groups, including the Sierra Club and the Southern Environmental Law Center, which joined the University in announcing the findings, filed suit against Duke Energy Progress, Inc. this summer, arguing that pollution from the Sutton plant's coal ash is “killing a regional fishing lake and is threatening a community’s drinking water.”

The new report, which found that the coal ash pollution kills over 900,000 fish and deforms thousands more in Sutton Lake each year, is likely to bolster the plaintiffs' case in that suit.

The research also highlights one of the most fundamental problems with American energy policy: policy-makers and the public have been unwilling to recognize the true costs of the fuels we use to make electricity.

Oil and Gas Industry Moves to Silence Critics

Shutterstock image by iodrakon

At an industry public relations conference last year, Michael Kehs of Chesapeake Energy described a Wall Street Journal op-ed to gathered oil and gas officials, saying it pointed out the industry's “credibility problem.”

“And I’m sure some of it relates to defensiveness,” Kehs added. (MP3 Audio

Small wonder.

For years, the oil and gas industry has adopted a war-like mentality towards its critics. When confronted with problems caused by drilling and fracking, instead of acknowledging them and working to prevent more, their approach has too often been to cover up the issues while attacking any critics who make problems known publicly.

This pattern has sharply accelerated in recent months.

Earlier this month, Al Armendariz, the EPA's regional administrator for the oil-and-gas rich states of Texas, Louisiana, Arkansas, Oklahoma, and New Mexico, sent his letter of resignation to Lisa Jackson, head of the EPA. Mr. Armendariz had come under heavy fire over comments he made two years ago at a local government meeting in Texas. 

In explaining his law enforcement philosophy, he analogized his agency's strategy to the early Romans, who he said would “crucify” law-breakers to make examples of them. After a video of these remarks was circulated last week by Sen. James Inhofe, Republican from Oklahoma, who counts the oil and gas industry as one of his largest donors, a firestorm of controversy broke out.

As Media Matters pointed out, when Mr. Armendariz said he intended to make an example of offenders, he was referring only to companies that actually broke the law – but this was not enough to save his career.

Texans Fight Against TransCanada's Keystone XL Pipeline: Don't Mess With Texas

In East Texas, where pipelines are more a fact of life than a sight for sore eyes, defenders of property rights are teaming up with environmentalists to oppose TransCanada Corporation’s Keystone XL tar sands pipeline.

TransCanada, a Calgary-based company, is proposing 1,959 miles of pipeline destined to run from the tar sands mines of Hardisty, Alberta, by way of Montana, South Dakota, Nebraska, Kansas, Oklahoma and concluding its journey at Port Arthur, Texas refineries. The Keystone XL pipeline project is promoted as a promising solution for increased oil access and security for the U.S., which imports some 9 million barrels of oil per day.

The Keystone XL pipeline differs from the many other pipelines crisscrossing Texas since it is foreign-owned. TransCanada is still awaiting approval from the State Department to build it.

Perhaps underestimating Texans’ fierce ethic of individual property rights, TransCanada has taken a heavy-handed approach to gathering local support for this project, according to coverage in the Los Angeles Times. In growing numbers, East Texans are becoming unnerved by a foreign company showing up on their properties unannounced, dictating terms and sending out land agents with complicated easement agreements ready for the landowner to sign. (TransCanada isn’t quite so kind in South Dakota, where the company has filed more than a dozen lawsuits against property owners in an effort to condemn land under “eminent domain.”)

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