litigation

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

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.

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.

Fossil Fuel Connected Judge Says Oil Industry Not Liable For Destroying Gulf Coast

While much of the attention paid to the Gulf Coast in recent years has focused on BP’s destruction of the Gulf of Mexico and the coastline, it is important to remember that the fossil fuel industry has been polluting the South for decades.

In fact, the problem is so bad that the Southeast Louisiana Flood Protection Authority-East filed a lawsuit against 97 fossil fuel companies two years ago to force them to pay for the destruction that they have caused to the Louisiana coast.

The lawsuit seemed almost doomed from the start: Republican Louisiana Governor Bobby Jindal signed legislation in 2014 that forbade the lawsuit from moving forward, but this legislation was later ruled unconstitutional and thrown out.

As Climate Progress points out, the growing concern among Louisiana citizens is that their coastline is disappearing: More than 1,900 square miles of coast line has vanished in the last 85 years, and the fossil fuel industry has been responsible for polluting what’s left. The industry has even admitted it is responsible for at least 36% of the total wetland loss in the state of Louisiana. The State Department estimates that the wells drilled by the dirty energy industry are destroying as much as 59% of the coast.

An admission of liability, hard facts, and the protection of the public’s well being should have been enough to make this case a slam-dunk for any seasoned attorney. Unfortunately, the dirty energy industry has powerful connections all over the South – from politicians to judges – and those connections have resulted in the dismissal of the lawsuit.

In mid-February, U.S. District Judge Nanette Jolivette Brown tossed the suit, after the industry successful lobbied to have the case moved from a state judge to a federal judge. This action, known as venue-shopping, allows a defendant to search for a more friendly judge before the case is heard, and Judge Brown is about as friendly with the industry as a judge ever could be.

Before her appointment to a federal judgeship by President Obama (confirmed unanimously by the U.S. Senate), Judge Brown spent decades as a corporate attorney, working for firms that regularly represented the dirty energy industry in matters of environmental litigation.

During her time in practice, she worked at the law firms of Adams & Reese, the Onebane Law Firm, Milling, Benson, & Woodward, and the Chaffe McCall law firm. The McCall firm’s website says the following about its oil and gas representation:

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.

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