Why the fight to stop Keystone XL is far from over

by Tim Donaghy

November 22, 2017

This week Nebraska's Public Service Commission approved an alternate route for the Keystone XL pipeline. But that decision wasn't what the pipeline builder was hoping for -- and it shows that continued resistance will be crucial to defeating this pipeline for good.

© Amber Bracken / Greenpeace

This Monday the Nebraska Public Service Commission approved an alternate route for TransCanada’s proposed Keystone XL tar sands pipeline, and denied the company’s preferred route. The pipeline should have been rejected outright, but as the company’s grimly muted response shows, this decision by the PSC wasn’t the good news TransCanada had been hoping for.

The Keystone XL pipeline now faces significant legal, financial, and regulatory hurdles, a growing resistance movement on the ground, as well as a number of banks backing away from funding such risky and destructive projects.

With everything in front of TransCanada it’s hard to see an easy path forward for the company.

Let’s break it down.

Tell It To The Judge

Legal challenges to the Keystone XL pipeline had already started piling up before Monday’s decision.

Earlier this year environmental and grassroots groups filed suit to challenge Trump’s approval because the administration relied on an outdated and incomplete Environmental Impact Statement (EIS) that dated back to 2014. Monday’s decision may strengthen those arguments because the outdated EIS is based on a different route than what was ultimately approved, meaning that some environmental impacts may not have been properly studied. To give one example, the new route could impact new threatened and endangered species, including the pallid sturgeon.

https://twitter.com/Ed_Crooks/status/933051370168553472

The U.S. State Department has said it is reviewing the PSC decision and just today a federal judge ruled that this lawsuit can proceed, raising the possibility that further environmental reviews may be ordered before Keystone XL can move ahead.

Similarly, Dakota Rural Action, the Intertribal Council on Utility Policy, and the Yankton Sioux Tribe are involved in legal action against the state of South Dakota, which had previously approved the pipeline in that state.

Finally, groups could choose to file an appeal against the Nebraska PSC decision itself in the next 30 days.

Re-routing the pipeline could also lead to new legal headaches for TransCanada. Landowners along the new pipeline route may not have had sufficient opportunity to comment on the alternate route, and new objections and disputes could arise. TransCanada will likely need to secure easement agreements with these new landowners or could be required to file eminent domain petitions to proceed with construction.

As a lawyer for the Sierra Club put it, “this decision opens up a whole new bag of (legal) issues that we can raise.” Navigating these various hurdles could be a very lengthy and potentially costly process.

Ground Resistance

Despite this approval, ground resistance to this pipeline continues to grow. The chairman of the Cheyenne River Sioux Tribe, Harold Frazier, stated that his tribe “will fight this treaty violation with any means necessary. […] We have not asked for this danger to our way of life, yet today it is being forced upon us again.”

No Keystone XL Pipeline NoKXL

Just this week in South Dakota on the Lower Brule Reservation of the Kul Wicasa Oyate, representatives of Tribal Nations gathered for the second signing of the Treaty to Protect the Sacred from tar sands. See the livestream here.

From that important gathering, a handful of groups, including Greenpeace USA, launched the “Promise to Protect”– a promise to keep the movement against this tar sands pipeline going with peaceful, creative resistance.

The Ponca Tribe of Nebraska has worked with a coalition of allies to plant Ponca Sacred Corn in the path of the proposed pipeline, and near the Ponca Trail of Tears. Similarly, at multiple locations along the pipeline route, families have built solar power arrays in its path as a concrete reminder that clean energy is a viable alternative to dirty tar sands and have plans for more.

TransCanada’s recent 200,000+ gallon spill from its existing Keystone 1 pipeline in South Dakota highlights why so many have pledged to stand against these pipelines.

This resistance is part of a growing movement opposed to the further expansion of risky and unnecessary fossil fuel infrastructure. Three proposed pipelines carrying tar sands from Alberta to ports and refineries have drawn particular opposition. Already over 150 First Nations and Tribes have declared their opposition to tar sands pipelines, rail and tanker traffic through their traditional territories and waters.

Enbridge’s proposed Line 3 expansion still has not secured final regulatory approval but has already sparked protest encampments and resistance. Kinder Morgan’s Trans Mountain pipeline which was proposed to carry tar sands bitumen from Alberta to Canada’s west coast has been greeted by the construction of tiny houses along its path, built by members of the Secwepmc Nation.

Banks Think Twice About Lending to Destructive Projects

The PSC decision was seen by some financial analysts as a sign of uncertainty for the project. Moody’s Investors Service stated that the decision “does not provide certainty that the project will ultimately be built and begin operating” and that pipeline construction “would negatively affect TransCanada’s business risk profile.”

A recent report from Greenpeace and Oil Change International, In The Pipeline, outlined the significant risks to banks and investors of these three tar sands pipelines. Major risks include:

  • Reputational risks from projects that could violate the human rights of indigenous communities, and that have proceeded without obtaining the Free, Prior and Informed Consent of communities impacted by the pipelines.
  • Reputational and financial risks from projects that pose a threat to local environments from pipeline oil spills and potential contamination of water resources. In addition to last week’s Keystone spill, a recent report from Greenpeace found that the three companies proposing to build these pipelines, and their subsidiaries, have been responsible for at least 373 spills releasing over 60,000 barrels of hazardous liquids since 2010.
  • Undermining other actions on climate change by bankrolling projects that are flatly inconsistent with the goals of the Paris climate accords and a healthy climate. These proposed pipelines are key to unlocking up to 2 million additional barrels per day of tar sands, one of the most environmentally destructive energy sources on the planet.
  • Questions over the economic viability of the pipelines. The expansion of the tar sands is also dependent on high future oil prices that may not materialize. China and a number of other countries have announced policies that could significantly reduce the demand for oil over the next decades.

In recent months a number of banks, including BNP Paribas (the 8th largest bank in the world), ING Bank, and US Bank have adopted policies to eliminate financial support for tar sands pipelines. Greenpeace has called on JPMorgan Chase to do the same. Twenty-five banks currently provide key financial services that allow these projects to proceed.

All of this shows that organized, people-powered resistance can beat powerful and wealthy corporations. The resistance to KXL is working, but we need to fight even harder to cancel this pipeline for good. Join the #PromiseToProtect and plug into a massive wave of creative resistance to stop the pipeline.

 

Tim Donaghy

By Tim Donaghy

Tim Donaghy is a Senior Research Specialist with Greenpeace USA. He writes frequently about climate change, offshore oil drilling, energy production, and the Arctic.

We Need Your Voice Join Us!

Want to learn more about tax-deductible giving, donating stock and estate planning?

Visit Greenpeace Fund, a nonprofit, 501(c)(3) charitable entity created to increase public awareness and understanding of environmental issues through research, the media and educational programs.