U.S. judge denies request for Keystone XL pipeline pre-construction work

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A U.S. judge has denied a request for pre-construction work to go ahead on the Keystone XL pipeline.

U.S. District Judge Brian Morris on Friday denied a request by Calgary-based TransCanada to begin constructing worker camps for the 1,905 kilometre pipeline that would ship crude from Alberta to the Gulf Coast. 
 
However, Morris said TransCanada could perform some limited activities outside the pipeline’s right-of-way. Those include the construction and use of pipe storage and container yards.

« I don’t see it as that significant, » said Nigel Bankes, a professor of law at the University of Calgary.

« I think it simply confirms that the permit that TransCanada had remains suspended and what TransCanada has got out of this is some clarification about work that it can continue to do and work that it’s not allowed to do under the earlier judgement. »

The Keystone XL pipeline would bring oil from Hardisty, Alta., to Steele City, Neb. (Natalie Holdway/CBC)

TransCanada said last month it plans to start clearing trees and foliage for the northern route of the pipeline after the National Energy Board announced it had approved the pipeline company’s request to do some winter clearing work.

The regulator said the company had satisfied requirements to remove trees and shrubs around Hardisty, Alta., and further south in a block known as Keystone’s north spread.

Hardistry is about 210 kilometres northeast of Red Deer, Alta.

The pipeline, expected to cost $8-billion, would carry 830,000 barrels of crude a day from Hardisty to Nebraska. The pipeline would then connect with the original Keystone that runs to refineries in Texas.

In December, a Montana Federal Court judge gave the company permission to continue some pre-construction work such as engineering, awarding contracts and taking meetings.

The pre-construction work is essential, the company has said, to be ready for the 2019 spring construction season and meeting its targeted 2021 completion date.

TransCanada is still waiting for approval to continue field work in the United States.

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Keystone pipeline is Trump’s latest failed attempt to roll back environmental regulations

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Climate activists did cartwheels. Alberta’s landlocked, lacklustre oil patch wailed. U.S. President Donald Trump spat contempt, calling a U.S. court-ordered halt to TransCanada’s Keystone XL pipeline “a disgrace” — and then proceeded to do what he does pretty much every day, igniting a new volley of news-grenades, drawing attention elsewhere.

The bombardment of daily distraction may be this president’s best friend, sucking up oxygen that might otherwise help drive a deeper understanding of what happens — and what doesn’t — after the sound byte explodes.

In this photo taken on May 08, 2017, Indigenous leaders and climate activists disrupt business at a Chase Bank branch in Seattle. A Montana judge has stopped the White House’s approval of the project.
In this photo taken on May 08, 2017, Indigenous leaders and climate activists disrupt business at a Chase Bank branch in Seattle. A Montana judge has stopped the White House’s approval of the project.  (JASON REDMOND / AFP/GETTY IMAGES)

But it’s worth a look at the 54-page ruling that dropped late Thursday at a U.S. court in Montana, putting the brakes yet again on the meandering, decade-long saga of KXL. All told, Judge Brian Morris’s ruling amounts to a scathing indictment of a dog-ate-my-homework administration that still appears incapable, even two years in, of crossing its Ts or dotting its Is.

In rejecting Trump’s green light for a pipeline that already enjoys the uneasy backing of the Trudeau Liberals, the Notley NDP and an Alberta industry screaming for greater export capacity, Judge Morris essentially assigned blame to an incompetent White House.

It’s not the end for Keystone XL, of course. As TransCanada regrouped Friday, saying it would review the ruling before looking to next steps, Alberta Energy Minister Marg McCuaig-Boyd acknowledged the “frustrating setback” but vowed, “We still believe we will get through.”

The TSX and the Canadian dollar reeled on the news and left Alberta’s leaders pleading anew for help from Ottawa to increase crude-by-rail to help address a widening differential that has the province’s heavy oil massively discounted against U.S. light-crude prices. McCuaig-Boyd called the price differential “horrible right now.”

But at its essence, the court injunction halting the $10-billion project is a U.S. decision against another U.S. decision, leaving Canada as a spectator to what happens next.

It remains unclear whether the Trump administration will go back to the drawing board and actually do its homework and re-submit or simply appeal its way up the judiciary in search of a friendlier ruling, if not at the 9thCircuit then perhaps all the way to the Supreme Court.

Judge Morris nailed Trump’s state department for a series of shortcomings that violated several laws, saying it “fell short of a ‘hard look’” at the pipeline’s evolving viability and the effects of greenhouse gas emissions. It also questioned the absence of any updated modeling of environmental cleanup in light of major oil spills in 2014 and 2017 that “qualify as significant.”

On paper, some of that blame might seem to belong to former secretary of state Rex Tillerson, on whose watch much of department’s submission was prepared. But Tillerson, to his credit, recused himself of any involvement in the Keystone XL pipeline file shortly after taking office in 2017 to avoid any perceived conflict of interest relating to his former role as chief executive officer of Exxon Mobil Corp.

Some U.S. observers noted a pattern in the admonitions that, coupled with other rulings against Trump efforts at energy deregulation, called into question the administration’s ability to actually deliver.

“One of the biggest political myths in America is that, say what you will about Trump, but he’s managed to cut environmental regulations to the bone,” tweeted Jerry Taylor, founder of the DC-based think-tank, Niskanen Center.

“Nonsense on stilts. He’s been screamingly incompetent at that job as well. Not for lack of trying.”

A case in point: last month Slate put the Trump deregulation mantra to the test, concluding that the administration had “largely failed” after multiple attempts to put Obama-era regulatory efforts on ice.

Instead, the Slate analysis argued, Team Trump now was abandoning its attempts to short-circuit the process and was instead shifting to the more cumbersome task of crafting new regulatory policy.

“But having squandered half of its four-year term, the White House faces an uphill climb in developing its major environmental rollback initiatives, and getting them past now-skeptical courts, before the clock runs out.”

For a project whose saga now has spanned three presidencies, the fate of Keystone XL remains baffling — and, likely, overblown. Barack Obama himself — in pursuit of an all-of-the-above energy policy not unlike that of Justin Trudeau’s government — split the difference on the Canadian pipeline in 2015, approving the southern leg but blocking the northern extension from Alberta.

In so doing, Obama lamented how this one Canadian pipeline somehow had become a convenient political football for everyone.

“For years, the Keystone pipeline has occupied what I, frankly, consider an overinflated role in our political discourse,” he said.

“It became a symbol too often used as a campaign cudgel by both parties rather than a serious policy matter. And all of this obscured the fact that this pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others.”

That symbolism seemed to have faded into the history books — as a done deal, under Trump — as the debate over carbon taxes and the absence of American climate leadership amid worsening scientific climate data filtered forward.

But no longer. Like it or not, Keystone XL — the controversy, if not an actual pipeline — is back on centre stage.

Mitch Potter is a reporter and feature writer based in Toronto. Follow him on Twitter: @MPwrites

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U.S. judge halts Keystone XL pipeline construction

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A federal judge in Montana has filed an injunction to stop construction on the TransCanada Keystone XL pipeline on Thursday. 

Brian Morris, the district judge in Montana, filed a 54-page order addressing allegations from Indigenous and environmental groups, alleging the U.S. Department of State made several violations when it approved the Keystone project. 

Dennis McConaghy, a former executive at the Calgary-based TransCanada Corporation, said the ruling is bad news for Canada. 

« This would be very, very problematic and put even more pressure on a Trudeau government to get the Trans Mountain pipeline built, » he said. « Canadians should hope that this thing is vigorously litigated and reversed. » 

And he guesses the ruling will be looked at and reversed in a higher court. 

In August, Morris ruled that the State Department was obligated to « analyze new information relevant to the environmental impacts of its decision » to issue a permit for the pipeline last year.

Order can be appealed, lawyer says

Stephan Volker, who represented the Indigenous Environmental Network called the order a win.

« When the Trump administration reversed course it failed to address those factual findings, » Volker said. « Under a number of different laws in the states administration has to explain the reasons why it feels it can change a decision when it was made contrary to actual findings in the past. »

Volker said the Keystone XL project violated several environmental laws and emphasised that the Trump administration failed to address a key flip flop from a previous ruling by former Secretary of State John Kerry in 2015.

During Barack Obama’s presidency, Kerry ruled that the project wasn’t in the public interest, citing climate change issues and alleging the project wouldn’t be the economic driver it promised to be.

Volker said the judge’s ruling means the project has been set aside and can’t proceed — but the order can be appealed.


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