Marin anti-Keystone pipeline activists applaud legal victory

November 28, 2017
By Richard Halstead
Marin Independent Journal

A Marin environmentalist who helped bring a lawsuit challenging the proposed extension of the Keystone XL pipeline is celebrating a legal win after a federal judge ruled the case can proceed.

“The Trump administration tried to have our lawsuit dismissed,” said former Fairfax mayor Frank Egger of North Coast Rivers Alliance, one of the lead plaintiffs in the case.

“The judge ruled in our favor flat out saying that we have standing,” he said. “This case is going to go forward.”

U.S. District Judge Brian Morris in Great Falls, Montana, on Nov. 22 rejected attempts by the Trump administration and TransCanada Corp. to toss out the suit challenging the cross-border permit for the pipeline.

The proposed extension of the Keystone XL Pipeline would transport up to 830,000 barrels of Alberta tar sands oil per day from Alberta, Canada and the Bakken Shale Formation in Montana over 875 miles to existing pipeline facilities near Steele City, Nebraska. From there the oil would be delivered to Cushing, Oklahoma, and the Gulf Coast region.

In November 2015, former President Barack Obama vetoed the pipeline, but in May 2017 President Trump reversed Obama’s decision, and the State Department issued TransCanada, the Calgary-based company building the pipeline, a permit to proceed.

North Coast Rivers Alliance and the Indigenous Environmental Network were the first to file suit to challenge the issuance of the permit; that is why they are the lead plaintiffs in the suit. They have been joined by such groups as the Northern Plains Resource Council, Bold Alliance, Center for Biological Diversity, Friends of the Earth, Natural Resources Defense Council and the Sierra Club.

In their suit, the environmental groups assert that the State Department and other agencies relied on inadequate and outdated environmental review of the pipeline that failed to factor in important information about the project’s impacts.

“The president’s approval of this was done without any real environmental review or consideration,” said Marin Municipal Water District board member Larry Bragman, who is a North Coast Rivers Alliance board member.

In June, the Trump administration and TransCanada filed motions arguing that the administration is not required to comply with the National Environmental Policy Act or the Endangered Species Act and that presidential authority prevents judicial review of the approvals.

Egger said the environmental groups suspect the Trump administration and TransCanada may appeal Judge Morris’s decision to the 9th Circuit U.S. Court of Appeals in San Francisco.

“But that is a double-edged sword for the Trump administration,” Egger said. “The Ninth Circuit is one of the circuits that is very concerned about environmental impacts of major projects — so it would be a gamble for the Trump administration to appeal.”

The Keystone pipeline was shut down for nearly two weeks after it leaked more than 210,000 gallons of oil in northeast South Dakota on Nov. 16. It resumed normal operations on Tuesday.

On Nov. 20, state regulators in Nebraska rejected TransCanada’s preferred route for the pipeline, approving only an alternate path.

Egger said in October he, Bragman and NCRA’s attorney Stephan Volker traveled to Montana to survey the proposed route for the pipeline.

“We met with tribal leaders and they took us on a tour from where the Keystone XL pipeline would cross into Phillips County, Montana from Canada,” Egger said.

From there, the pipeline would pass under the Milk, Missouri and Yellowstone rivers.

Egger said, “It was basically a reconnaissance trip so we fully understand the implications of a spill there on the tribes in northeastern Montana.”

Bragman, who a year ago joined the protest against the Dakota Access pipeline at the Standing Rock Sioux Reservation, said, “The Keystone XL pipeline is probably the most important environmental risk that we’re looking at in the near term. Anything we can do to stop or delay this project is a worthy cause and needs to be pursued.”