Was southern leg of Keystone XL built illegally?

President Obama Speaks At Southern Site Of The Keystone Oil Pipeline photo
© Photo by Tom Pennington/Getty Images

Was the southern leg of Keystone XL built illegally? A lawsuit has been filed alleging it and pipeline projects that were "fast-tracked" in 2012 were not done according to existing environmental law. But let's back up first. As the debate over the proposed Keystone XL pipeline has gone on for years now, one piece of the story that some people may not realize is that a significant portion of the pipe is already nearly complete.

In 2012, President Obama issued Executive Order 13604, which approved and "fast-tracked" the so-called "southern leg" of the pipeline running from Cushing, Oklahoma down to Port Arthur, Texas. But that's not all that Executive Order contained. Steve Horn reports that in addition to expediting the southern leg, EO 13604 also led to the expediting of 48 other oil and gas infrastructure projects.

In his detailed reporting, Horn calls the move a "metaphorical slap in the face to environmentalists":

That’s because Obama’s order also called for expedited permitting and review of all domestic infrastructure projects – including but not limited to pipelines – as a reaction to the Keystone XL resistance.
Rather, many key pipeline and oil and gas industry marketing projects are currently up for expedited review, making up for — and by far eclipsing — the capacity of Keystone XL’s northern half. The original TransCanada Keystone pipeline – as is – already directly connects to Cushing from Alberta, making XL (short for “extension line”) essentially obsolete.

After so much debate, delay, civil disobedience, and protest of Keystone XL, I disagree with Horn's assessment that KXL is "essentially obsolete". After all, as Ryan Lizza's piece explained yesterday, the fight over Keystone XL has galvanized a fractured climate movement and the decision on whether to approve the "northern leg" is now seen as a major test of Secretary of State John Kerry and President Obama's sincerity in slowing climate change.

But as Horn points out, because of Obama's executive order and the routing of the existing Keystone One pipeline, the decision to approve the "northern leg" of Keystone XL is largely symbolic at this point.

At the time of the 2012 Executive Order, Brian Merchant wrote for TreeHugger that it was a bit of "political theater" meant to weaken attacks from the Republican candidates for President who were attacking Obama's energy policies. Merchant noted that the Executive Order would apply to other pipeline projects and that this had outraged Keystone XL activists.

But now, looking back a year and a half later, Horn shows just how much of an impact this Executive Order has had on pipeline projects in the US.

Though the order issued an expedited permitting process for Keystone XL’s southern half, it also foreshadowed that expedited permitting would become the “new normal” going forward for all domestic oil and gas pipeline projects.

“To address the existing bottleneck in Cushing, as well as other current or anticipated bottlenecks, agencies shall … coordinate and expedite their reviews … as necessary to expedite decisions related to domestic pipeline infrastructure projects that would contribute to a more efficient domestic pipeline system for the transportation of crude oil,” the memo states in closing.

The memo also notes all projects placed in the expedited permitting pile can have their statuses tracked on the online Federal Infrastructure Projects Dashboard, with 48 projects currently listed.

Deeper in Horn's report, he also notes that some of the fast-tracked pipeline projects may have been built illegally.

The permitting mechanism utilized by the U.S. Army Corps of Engineers – following Obama’s March 2012 executive order and memorandum – was a Nationwide Permit 12.

Nationwide Permit 12 has also been chosen for fast-tracked permitting of Enbridge’s Flanagan South Pipeline. That pipeline is set to fill the gap – and then some – for Keystone XL’s northern half, bringing tar sands crude along the 600-mile long, 600,000 barrels per day pipeline from Pontiac, Ill. to Cushing, Okla.

A 2012 document produced by the Army Corps of Engineers explains Nationwide Permit 12 is meant for permitting of utility lines, access roads; foundations for overhead utility line towers, poles, and anchors: pipelines carrying corrosive tar sands crude go unmentioned.

So far, a lawsuit filed over the legality of that construction has yet to be heard in court. Who knows if it ever will.

There much more to Horn's report to digest. So read the rest here.

Was southern leg of Keystone XL built illegally?
Steve Horn reports that in addition to expediting the southern leg, Executive Order 13604 also led to the expediting of 48 other oil pipeline projects.

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