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Brief # 111 Environmental Policy

I Heard it Through the Pipeline: An Update on Three Controversial Oil Pipeline Projects 

By Jacob Morton April 12, 2021

From the beginning of his presidency, Donald Trump made every effort to weaken the country’s environmental protections and accelerate profits for the fossil fuel industry. Trump’s single term was riddled with attempts to roll back, what he considered, cumbersome environmental regulations, some that had existed for decades. He appointed oil and coal lobbyists to the Environmental Protection Agency and Department of Interior, who would champion the expansion of oil pipelines throughout our federal lands. The work to clean up his mess is far from over. Here is an update on three highly controversial oil pipeline projects made possible by the Trump administration: 

Keystone XL Pipeline

The Keystone XL Pipeline is an extension of the already existing Keystone Pipeline system owned and operated by the Canadian company TC Energy, which currently carries Alberta tar sands crude oil to various refineries in the central United States. The XL Pipeline extension is intended to extend from Alberta, Canada through the states of Montana, South Dakota, and Nebraska, to connect back with the original Keystone Pipeline system in Steel City on the Southern Nebraska border. The crude oil would then continue down to refineries on the Gulf Coast. The XL Pipeline extension would act as a shorter and more direct route from Canada to the Gulf Coast, adding a carrying capacity of about 330,000 barrels daily to the original system. The southern leg of the pipeline extension is already built, but the northern leg has seen several setbacks to its progress.

In 2008, TC Energy (then known as TransCanada) first applied for approval of the XL pipeline but was denied in 2009 by the State Department under President Barack Obama after a lengthy analysis (seven years) and public comment period which concluded that the extension “would fail to serve national interests.” On Donald Trump’s fourth day in office in 2016, the former president signed an executive order to reverse the Obama era decision and allow the pipeline project to move forward, calling for an expedited approval process. Months later, the Trump administration finalized approval of the necessary permits for the pipeline to cross the border into the U.S. The approval, however, was challenged in federal court by various groups including the Natural Resources Defense Council (NRDC) and the Indigenous Environmental Network (IEN). The federal judge hearing the case in Montana found the issued permits to be illegal, ruling that the State Department “violated the Administrative Procedure Act and the National Environmental Policy Act in granting the permit request.”

Despite the court ruling, Trump took it upon himself to reissue the cross-border permits. His administration then attempted to issue various other permits necessary to the project which led to two more lawsuits from the NRDC and IEN challenging flawed environmental analyses. Local movements led by farmers, ranchers, tribal leaders, and conservation groups have managed to continue to stall the project’s progress for the past four years. Then, on President Joe Biden’s first day in office, as promised throughout his campaign, he signed an executive order officially revoking the 2019 cross-border permit issued by Trump, and effectively put an end to the Keystone XL Pipeline project.

Less than two months after issuing his executive order, attorneys general representing 21 states filed a lawsuit in Texas’ Southern District Federal Court, claiming the President’s decision “oversteps his constitutional authority.” The lawsuit claims that the President of the United States has “certain prerogatives” for taking action in foreign affairs, “But as far as domestic law is concerned, the President must work with and abide by the limits set by Congress — whether he likes them or not.” The attorneys general claim that under Article II of the Constitution, “the power to regulate international and interstate commerce resides with Congress—not the President.” Arguments in the lawsuit point to the lost tax revenues for “states, counties, local communities and school districts,” as well as the loss of “tens of thousands of potential construction jobs up and down the system.”

The claim that tens of thousands of potential jobs have been lost by the President’s executive order has been a popular argument, but both TC Energy and the State Department have said most of those jobs would be temporary. A 2014 State Department report “found that the project would require fewer than 2,000 two-year construction jobs and that the number of jobs would hover around 35 after construction.” Anthony Swift, director of the Canada project at NRDC says, “In a world where we are looking at an opportunity for a green infrastructure that would generate millions of jobs over the next decade, compared to that, this is really a distraction.”

Marty Durbin, president of the U.S. Chamber of Commerce’s Global Energy Institute, however, still disagrees with the President’s executive order and claims the decision is not grounded in science. Durbin argues that the project “has cleared countless legal and environmental hurdles,” and claims “Halting construction will also impede the safe and efficient transport of oil, and unfairly single out production from one of our closest and most important allies.”

Prime Minister of Canada, Justin Trudeau, did address the President’s decision after the signing of the executive order, stating, “We are disappointed but acknowledge the President’s decision to fulfil his election campaign promise on Keystone XL.” Trudeau then went on to praise Biden, saying, ““Despite President Biden’s decision on the project, we would like to welcome other executive orders made today, including the decisions to rejoin the Paris Agreement and the World Health Organization, [and] to place a temporary moratorium on all oil and natural gas leasing activities in the Arctic National Wildlife Refuge.”

It is true that transporting oil via pipeline is generally safer than by other means, such as truck or rail, but tar sands oil is not like your typical crude oil. “Tar sands oil is thicker, more acidic, and more corrosive than lighter conventional crude,” increasing the likelihood of a leak. According to the NRDC, “between 2007 and 2010, pipelines moving tar sands oil in Midwestern states spilled three times more per mile than the U.S. national average for pipelines carrying conventional crude.” And records show TC Energy is not bucking the trend.

NRDC reports that “Since it first went into operation in 2010, TC Energy’s original Keystone Pipeline System has leaked more than a dozen times; one incident in North Dakota sent a 60-foot, 21,000-gallon geyser of tar sands oil spewing into the air.” Most recently, in October 2019, the Keystone pipeline spilled more than 378,000 gallons of tar sands oil in North Dakota. If completed, the pipeline would cross over “hundreds of rivers, streams, aquifers, and water bodies,” including Nebraska’s Ogallala Aquifer, “which provides drinking water for millions, as well as 30 percent of America’s irrigation water.”

Farmers, ranchers, environmental groups, and tribal organizations have all expressed deep gratitude for the President’s order. Dale Marshall, national climate program manager for Canada’s Environmental Defense, says, “Killing the Keystone XL pipeline once and for all is a clear indication that climate action is a priority for the White House.” More than 90 leading scientists and economists, five unions, and world leaders such as the Dalai Lama, Archbishop Desmond Tutu, former president Jimmy Carter, and eight other Nobel laureates have written letters against the project. The U.S Department of Justice has not yet commented on the lawsuit.

Enbridge Line 3 Replacement Pipeline

The Enbridge Line 3 Replacement is a heavily contested oil pipeline project meant to replace the 337-mile U.S. portion of the Line 3 tar sands pipeline owned and operated by Canadian energy company, Enbridge. The new U.S line would have a slightly altered route, but for the most part, would run adjacent to the old line, extending from the Canadian border at the northeast corner of North Dakota, through Minnesota and on to Superior, Wisconsin. The project has faced numerous legal setbacks since its regulatory review process began in 2014. One occurred in June 2019, when an appeals court reversed a decision by Minnesota utility regulators who had approved the environmental impact statement for the pipeline replacement.

However, in July 2020, then President Donald Trump finalized a rollback of the decades old National Environmental Protection Act (NEPA), weakening the requirements for federal review of many fossil fuel-based energy projects. The rules set forth by NEPA had remained intact for 50 years and required the government “to weigh environmental and community concerns before approving pipelines, highways, drilling permits, new factories or any major action on federal lands.” Many of Trump’s changes to the rule were meant to speed up the permitting of oil projects, including pipelines, on federal lands. One change limited the requirement to conduct a federal environmental review to only projects that have major federal funding. So, many privately funded energy projects, such as Enbridge’s Line 3 replacement, now only required limited government review if any. Many private oil projects could even conduct their own environmental impact assessments and not have to submit them for public comment.

After reapplying for the necessary permits, Enbridge gained approval from Minnesota’s independent Public Utilities Commission, citing a demonstrated demand to transport crude oil, and construction of the Line 3 replacement pipeline began in December 2020. Environmental activists and Indigenous rights groups continue to contest the project and have taken their cases to court, but so far two court rulings earlier this year have gone in Enbridge’s favor. Supporters of the pipeline replacement argue that the current Line 3 pipeline is over 50 years old and needs to be replaced to support the demand for oil transport. Leo Golden, the Vice President for Line 3 with Enbridge, says we need to take the oil that is currently being shipped by rail or truck, and get it into the pipeline. He says, “It’s best to get it back into a pipeline. Pipelines are the most efficient and safest way to move this product.”

Other supporters say they are grateful for even the temporary jobs the project brings. Josh Hegee, a pipeline business agent for the Local 49 pipeline, says, “This means a lot for the people in the area. A lot of these guys would be laid off right now. In three or four months they’re gonna put a big chunk of money in their pockets. This job could make a difference for people for years to come.” However, Opponents of the pipeline argue that “these jobs, and the overall economic activity, exist only in the short-term, and that the workforce does not solely benefit Minnesota workers.” Only about 33% of the workers are from Minnesota.

Indigenous activist and Northern Minnesota native, Tara Houska, says she understands the need for job creation in her home state, but not oil industry jobs. Houska says, “I would love to see investment from the state of Minnesota into these rural, beautiful places, the Land of 10,000 Lakes. Where’s the manufacturing jobs? Where’s the solar? Where’s the wind? Where are all these places and spaces that we could be creating, these really good long-term jobs?” The portion of the line that veers away from its original route crosses “over lands previously untouched,” and “goes through areas where tribes have long-standing treaty rights for fishing and hunting, in addition to harvesting wild rice.” Many feel a spill could be devastating. Houska says, “That wild rice is so sacred to our people. It’s at the heart of who we are. It is the center point of our culture, and our identity as a people.”

On March 23, 2021, The Minnesota Department of Commerce, along with the Red Lake Band of Chippewa, the White Earth Band of Ojibwe, and several other Indigenous and environmental groups, argued before the Minnesota Court of Appeals that Enbridge failed to show long-term need for the Line 3 replacement project. Katherine Hinderlie, an attorney for the Minnesota Department of Commerce, says, “Enbridge demonstrated demand to transport crude oil, not demand for the crude oil itself.” Hinderlie argues that “The demanders of crude oil are refineries, and therefore the department believes you should look to refinery demand for crude oil,” adding, “Space on the pipeline is driven by oil producers’ desire to sell and ship as much oil as they can.”

Two of the three judges hearing the case have expressed similar concern regarding the demonstration of demand. Judge Lucinda E. Jesson admitted, “I really struggle with seeing where the forecast is for demand in 15 years. When I looked at these reports and the data, I expected to see not just high projections going to 2030 or pipeline capacity going to 2035, but actually… what’s the demand, and I don’t see any of that.” Judge Paul M. Reyes Jr. agreed that he felt Enbridge and the Public Utilities Commission failed to provide evidence of an actual demand for more oil, rather than simply a demand for transporting the oil. Reyes also questioned whether the Commission used “stale data” to evaluate the pipeline’s potential environmental impact, noting the evolution in climate change policy in recent years.

Protesters continue to organize and continue to be arrested. Opponents of the pipeline have pressured President Biden to revoke a federal water permit for the project, much like his executive order that shut down the Keystone XL pipeline. Enbridge says the case is different from Keystone XL; they are not installing a new line, just a replacement, and “that decision will have no effect on Line 3 because it is already operating.” The Minnesota Court of Appeals is expected to issue a decision by June 2021.

Byhalia Connection Pipeline

The Byhalia Connection Pipeline project is a crude oil pipeline project led by Plains All American Pipeline L.P. in partnership with Valero Energy Corporation. The pipeline approved late in the Trump administration, would carry crude oil nearly 49 miles from Memphis, Tennessee to a junction just over the border in Marshall County, Mississippi. This connection would extend the larger Diamond Pipeline that flows from Cushing, Oklahoma into Valero’s Memphis Refinery, onwards to connect with the Capline Pipeline running south from Central Illinois to the U.S. Gulf Coast. By making this connection from the Valero refinery in southwest Memphis to the junction in Mississippi, Plains and Valero would be able to increase the flow capacity of their Diamond Pipeline from 200,000 barrels to 420,000 barrels per day, according to the Securities and Exchange Commission.

Opposition to the pipeline has grown since it was first proposed, fearing the increased capacity will only result in more air pollution from the refinery and increased risk of oil spills above the region’s major aquifer and drinking water supply. Southwest Memphis and Shelby County residents have noticed that over the years they have seen industry investment rise and community investment decline in the area. The nearly all-Black neighborhoods of southwest Memphis are encircled by an oil refinery, airport, steel mill and power plants. According to the most recent National Emissions Inventory, compiled by the Environmental Protection Agency, “Sites in southwest Memphis accounted for 94% of all Shelby County’s 6.6 million total tons” of “criteria air pollutants” over the past three years.

In addressing the safety concerns of a pipeline extension, Valero says, “As part of our Diamond joint venture, we have safely owned and operated pipelines in and around Memphis without incident.” Valero’s track record in Memphis, however, is not so clean. According to state and federal agency records, between 2010 and 2012, numerous incidents at Valero’s Memphis facilities have resulted in two separate worker deaths, “1,500-gallons of diesel released into the harbor by a barge operator, 440 pounds of bleach into the ground, 528 pounds of hydrogen cyanide in the air and [an explosion that released] 500 pounds of sulfur dioxide.”

In January 2020, Valero leaked 800 gallons of crude oil near the proposed junction site by the Mississippi border where the Byhalia connection would extend to. Valero is also “under a federal consent decree agreement as of a $2.9 million settlement with the EPA in December, for non-compliance with gas and diesel fuel sampling at some sites, including Memphis, and non-compliance with emissions reductions standards regarding its fuel products at other sites, including a terminal across the Mississippi River in West Memphis, Arkansas.”

On top of this poor record, Valero admitted in February that its insurance coverage may not be sufficient to cover potential operating hazards. The company blamed unreasonable coverage rates. The Byhalia Connection Pipeline would run atop Memphis’ drinking water supply, The Memphis Sands Aquifer, which sits hundreds of feet below the surface and capped by a protective layer of clay. Scientists have already found at least 16 breaches in that clay cap, elevating the risk of potential contamination.

In seeking permanent easement status for the route of the pipeline, Byhalia has filed eminent domain claims for at least 67 parcels. Scottie Fitzgerald, lifelong resident of the area, owns two of those parcels, handed down to her by her mother who spent her last social security checks paying off the property taxes. Fitzgerald left her job to take care of her mother for four years before losing her to breast cancer, along with “About a whole neighborhood of people [who] ended up with breast cancer,” all of whom Fitzgerald claims lived within walking distance of each other in their town next to the Valero refinery and Dr. Martin Luther King Jr. Riverside Park.

Shelby County Mayor, Lee Harris, says he is opposed to the Byhalia Connection Pipeline, and some of those 67 properties are owned by the County, so a vote by County commissioners could create a barrier to the project. Fitzgerald and several other families are fighting the project in court with the help of a pro-bono lawyer, the Southern Environmental Law Center and a group called Memphis Community Against the Pipeline (MCAP). Representatives of Plains L.P. say they “have also begun to evaluate other routes if we cannot purchase these properties,” and that “These alternative routes will cross other properties owned by Shelby County residents or businesses.” Plains has signaled they are moving forward with the project and argue that with this pipeline extension, “We will be paying property taxes for seven miles of line, which will equate to millions in taxes over the decades the line will be in service.” Plains and Valero already pay only a quarter of the assessed taxes on the properties they own in Memphis due to a “payment-in-lieu-of-taxes agreement” granted to them by the Economic Development Growth Engine Board.

U.S. Representative Steve Cohen (D – TN) has requested that President Biden consider revoking the pipeline’s federal permit, but it is unclear whether that request is being considered. A spokesperson for the administration has said that “The administration’s policy involves approval on a case-by-case basis, … based on energy needs, the creation of union jobs, and Biden’s goal to achieve net-zero emissions by 2050.” It was not specified whether those determinations include pipelines with existing federal approval. Plains and Valero claim the pipeline connection “will help strengthen the region’s economic vitality and America’s energy independence.” The Byhalia Connection’s web page states that the pipeline “is currently in the pre-construction and easement acquisition phase of the project. We’re targeting to start construction in 2021 and be in service approximately nine months later.”

Jason Pearson, a longtime pastor in the Westwood neighborhood of Memphis says now is the time for decisive action, “This is the watershed moment. Are you going to stand with poor and low-wealth people and help them to have clean air, help them to keep oil out of their soil? Or are you going to stand with someone who’s going to give the city money? Are we that desperate for financial prosperity that we’re willing to risk the health of our people?” Pearson’s daughter, Kimberly Pearson, a teacher at Central High School in Memphis, recently reminded those loyal to big business in the region, “You can’t drink money. You can’t inhale money. You need to get your priorities straight.” The movement to resist the pipeline is gaining more and more support, largely thanks to the Pearson family. Recent supporters include former Vice President Al Gore and activist/actors Danny Glover and Jane Fonda.

Engagement  Resources

Memphis Community Against the Pipeline (memphiscap.org)

  • Memphis Community Against the Pipeline is fighting the multi-billion-dollar crude oil Byhalia Pipeline. The company seeks to profit $7B in yearly revenue while risking the drinking water of the community and forcibly taking private land.

 

Honor The Earth (honorearth.org)

  • Honor The Earth began in 1993 with the mission to create awareness and support for Native environmental issues and to develop needed financial and political resources for the survival of sustainable Native communities. Honor The Earth has re-granted over two million dollars to over 200 Native American communities.

 

Natural Resources Defense Council (NRDC.org)

  • Whether in California or Chicago, India or Canada, we help protect communities around the world. We combine the expertise of some 700 scientists, lawyers, and advocates with the power of more than three million members and online activists to confront our planet’s most pressing problems.

 

Learn More References

Beitsch, R. (2020, July 15). Trump finalizes rollback of bedrock environmental law NEPA. Retrieved March 30, 2021, from https://thehill.com/policy/energy-environment/507536-trump-finalizes-rollback-of-bedrock-environmental-law-nepa?rl=1

Byhalia Pipeline LLC. (2020, December 18). Byhalia Connection. Retrieved March 27, 2021, from https://byhaliaconnection.com/about-project/

Cole, B. (2021, March 18). Joe Biden exceeded his authority in CANCELING Keystone XL PIPELINE Says lawsuit. Retrieved March 29, 2021, from https://www.newsweek.com/keystone-xl-pipeline-oil-joe-biden-climate-change-lawsuit-1577088

Cole, B. (2021, March 24). Mitch McConnell Decries ‘Left-Wing signaling’ On Keystone XL Amid Joe Biden Power Lawsuit. Retrieved March 29, 2021, from https://www.msn.com/en-us/news/world/mitch-mcconnell-decries-left-wing-signaling-on-keystone-xl-amid-joe-biden-power-lawsuit/ar-BB1eV40N?ocid=uxbndlbing

Denchak, M. (2021, January 20). What is the Keystone XL Pipeline? Retrieved March 29, 2021, from https://www.nrdc.org/stories/what-keystone-pipeline#controversy

Enbridge Inc. (2021). Line 3 replacement Project (U.S.). Retrieved March 30, 2021, from https://www.enbridge.com/line3us

Funke, D. (2021, January 24). Fact-check: Is Biden ‘Destroying 11,000 Jobs’ by Revoking Keystone Pipeline? Retrieved March 29, 2021, from https://www.oklahoman.com/story/news/nation-world/2021/01/24/fact-check-is-biden-destroying-11000-jobs-by-revoking-keystone-pipeline/323521007/

Gillies, R. (2021, January 20). Keystone XL pipeline halted as Biden revokes permit. Retrieved March 29, 2021, from https://abcnews.go.com/International/wireStory/work-keystone-xl-pipeline-suspended-ahead-biden-action-75371464

Hughlett, M. (2021, March 23). Oil demand, future of Enbridge Line 3 argued before appeals court. Retrieved March 30, 2021, from https://www.yahoo.com/entertainment/oil-demand-future-enbridge-line-203200588.html

Ibrahim, M. (2021, March 23). Need for disputed line 3 oil Pipeline argued in Minnesota Court of Appeals. Retrieved March 30, 2021, from https://www.twincities.com/2021/03/23/need-for-disputed-line-3-oil-pipeline-argued-in-minnesota-court-of-appeals/

Macaraeg, S. (2021, March 03). Near Byhalia Pipeline planned connection Point, Valero leaked 800 gallons of crude oil in 2020. Retrieved March 27, 2021, from https://www.commercialappeal.com/story/news/local/2021/03/02/planned-byhalia-site-valero-leaked-800-gallons-crude-oil-2020/6885232002/

Macaraeg, S. (2021, March 25). Toxic air. Insufficient Monitors. Why Memphis Families fighting Byhalia pipeline have had enough. Retrieved March 27, 2021, from https://www.usatoday.com/in-depth/news/nation/2021/03/25/black-families-square-off-big-oil-byhalia-pipeline-struggle/6965953002/

Minnesota Pollution Control Agency. (2021, February 11). Enbridge line 3 pipeline replacement project. Retrieved March 30, 2021, from https://www.pca.state.mn.us/regulations/enbridge-line-3-pipeline-replacement-project

Money, J. (2021, March 19). States fight President Biden’s decision to revoke Keystone XL pipeline permit. Retrieved March 29, 2021, from https://www.oklahoman.com/story/business/2021/03/18/states-sue-biden-over-keystone-xl-pipeline-presidential-authority/4749443001/

Peterson, L. (2020, January 09). Trump aims major rollback of landmark U.S. environmental law. Retrieved March 30, 2021, from https://www.radio.com/wccoradio/articles/feature-article/trump-aims-major-rollback-of-landmark-us-environmental-law

Spewak, D. (2021, March 26). In northern Minnesota, the line 3 oil pipeline remains a lightning rod for debate. Retrieved March 30, 2021, from https://www.kare11.com/article/news/local/in-northern-minnesota-the-line-3-oil-pipeline-remains-a-lightning-rod-for-debate/89-06e0f03b-94d6-473c-a96f-8943c58d7a56

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