Rancher Terry van Housen at his feedlot that lies on the Keystone XL pipeline route near Stromsburg, NE. (Photo: Mary Anne Andrei)

The President can do two things to remove certain obstacles to the permitting of the the Keystone XL tarsands pipeline, if TransCanada reapplies.

First, he can rescind Executive Order 11423 governing transboundary pipelines, eliminating the need for a National Interest Determination and review under the National Environmental Policy Act (NEPA).

Even without that step, second — the President and the Secretary of State could issue a positive NID and approve the pipeline as being in the national interest.

However, neither of these steps would mean a “green-light” to start the construction of Keystone XL.

There are still substantial obstacles, and the pipeline is not likely to be built anytime soon.

Jane Kleeb, President of Bold Alliance, said: “Nebraska farmers and ranchers need a President standing up for property rights and our clean water to produce American food. Foreign tarsands pipelines headed to the export market have no place in the Heartland. There is no application for Keystone XL and there never has been an approved route in Nebraska. The President should focus on American energy independence rather than taking land away from farmers using eminent domain for private gain.”

Tom Genung (chair of landowner collective Nebraska Easement Action Team) and Cathie Genung, Nebraska landowners: “Nebraskans are strong, independent people who will not be intimidated. We stood up to TransCanada before and we will do it again. Our newly elected president has no credibility and TransCanada has no permit. As we know, the promises of hundreds of jobs and millions dollars of revenue are bogus claims; Keystone XL is an export pipeline. Thanks to organizations like Bold Nebraska, 350.org and others we are organized and educated, and we will protect our land and water! No, Mr. President, just NO.”
Randy “Stand With Randy” Thompson, Nebraska landowner: “The political power of big oil is once again on full display today with the resurrection of the Keystone XL pipeline. Trump and the GOP are using the same old worn out and debunked theories to justify this project going forward. It is obvious to me that America’s landscape, the environment, and the property rights of thousands of American landowners are now in jeopardy of being sacrificed to serve as a dividend on the oil industry’s investment in the political system.”
Executive Orders
  • EO 13337 was announced by George W. Bush in 2004, and it amended EO 11423, which had been in place since Lyndon Johnson announced it 1968. Prior to that, the following EOs governed trans-border infrastructure:
    • EO 8202, announced by FDR in 1939, prohibited anyone from constructing or operating electric transmission facilities at the U.S. international border without first receiving a permit from the President (revoked and replaced by EO 10485.)
    • EO 10485, announced by Dwight Eisenhower in 1953, governed electric transmission and natural gas lines were (this was amended by 12038, which remains in force and gives DOE authority over these pieces)
    • EO 10520, announced by Dwight Eisenhower in 1954, governed land submarine cables (communication cables?)

Those were the only cross-border infrastructure policies in place prior to EO 11423.

However, beginning with President Ulysses S. Grant, permission for cross-border infrastructure has been granted by the President. This authority was exercised by William McKinley, and then formally recognized by the Attorney General in 1935, when FDR issued a license for an oil pipeline between Mexico and the U.S.

Nebraska

Unconstitutional pipeline law: The law (LB 1161) governing eminent domain and pipelines that TransCanada directly lobbied to pass through the Nebraska Legislature was challenged in court by Bold and landowners, and found to be unconstitutional. President Obama’s rejection of the pipeline compelled a Nebraska judge to dismiss the landowners’ case, but the unconstitutional law LB 1161 remains on the books, and thus TransCanada’s route for Keystone XL approved under the law is void. As a reminder, this law was pushed by Sen. Jim Smith, chair of Koch brothers-funded, right-wing group ALEC, which always does the bidding of corporations.

TransCanada must apply with Public Service Commission: Faced with this unconstitutional law they pressured Nebraska lawmakers to pass, TransCanada must instead now submit an application to build Keystone XL through Nebraska via the state’s Public Service Commission — a process that can take 8 months to a year. The PSC always had the constitutional authority to review pipelines, and during the heated 2011 Special Session in the Nebraska Legislature the PSC was given guidelines for reviewing pipelines. The PSC has the authority to tell TransCanada to choose a different route (e.g. Place a second pipeline alongside the Keystone 1 pipeline using the existing easements, so as to not take more land out production, and to not touch the fragile Sandhills and shallow parts of the Ogallala Aquifer). The PSC can also deny TransCanada’s application for a permit altogether.

No eminent domain for TransCanada until September 2017: TransCanada cannot apply to use eminent domain authority again to take farmers’ and ranchers’ land against their will until September 2017, according to applicable Nebraska state law governing the use of eminent domain. The collective of Nebraska landowners who held out against selling their land to TransCanada remains strong — many are still in court suing TransCanada for the money they had to spend on attorneys and court costs battling eminent domain for over six years.

South Dakota

The proposed Keystone XL route runs near the Rosebud and Pine Ridge Reservations and through their traditional Tribal territories. These Sioux reservations, like Standing Rock in North Dakota, are part of the Oceti Sakowin (Great Sioux Nation) and are likely to convene large numbers of Water Protectors from all over the country. The Tribes have strong legal claims relating to the failure of TransCanada and federal agencies to properly study the route, and consult with the tribes.

Federal Clean Water Act Permits still required

While some of these actions will eliminate claims under the National Environmental Policy Act (NEPA), Keystone XL will still be required to secure Section 404 Clean Water Act (CWA) permits for wetlands and stream crossings, absent Congress passing a law specifically exempting Keystone XL from the Clean Water Act. These CWA permits are subject to environmental review, and can be legally challenged.

Alberta, Canada and Commercial Considerations

When Keystone XL was first proposed in 2008 and again in 2011, oil prices were high ($100+ / barrel) and the tarsands industry in Alberta was expanding rapidly. Since then, oil prices have collapsed ($53 today). While projects that were already under construction when prices collapsed are being completed, all new projects are stalled. Tarsands reserves are marginal, and some companies may have to write down their tarsands assets.

In addition, the Alberta Government has committed to a cap on emissions from tarsands production. That cap, at 100m Metric tons of carbon, is roughly equivalent to 3.2 MBD of production. Increased efficiency could raise that production level in theory, but it would also raise the cost of the production. So even if oil prices recover, the tarsands industry will never go back to the unfettered growth of earlier periods.

In addition, since Enbridge has expanded its network of tarsands pipelines through the Midwest, so that some tarsands crude is now reaching the Gulf Coast. Finally, the Kinder Morgan Trans Mountain pipeline to the Vancouver coast has received Canadian federal approval — though opposition in British Columbia is quite strong, and that pipeline is not a done deal.

While TransCanada does have approved routes through Montana and South Dakota, it no longer has shipper agreements with tarsands crude producers. It is not clear that there is any need at all for an additional pipeline, for an industry that has a great deal of pipeline capacity already, and is not likely to grow.

Trump’s Statements

Finally, there are Donald Trump’s cryptic statements about wanting the U.S. to share in the profits from KXL, possibly via a 25% tax. This perspective is completely outside the norm for pipelines and, if implemented, could put TransCanada and its shippers at an economic disadvantage against other pipeline projects. Given all the other commercial weaknesses, this could cause TransCanada and Canadian oil producers to de-prioritize the project.

More Background on Nebraska

The Nebraska Legislature passed Legislative Bill 1 and 4 (LB 1 and LB 4) in 2011. LB 1 established the Major Oil Pipeline Siting Act, which required the Nebraska Public Service Commission to approve pipeline routes before the right of eminent domain could be exercised and construction could begin. LB 1 and LB 4 set out an approval process that included public hearings and environmental reviews. Following the second KXL application in 2012, the legislature passed LB 1161 which gave pipeline applicants the choice between applying to the PSC; or applying directly to the governor for approval of pipeline routes and eminent domain authority (thus circumventing the PSC process altogether). Governor Heineman subsequently approved the KXL route using LB 1161 process.

In 2014, a district court in NE ruled in favor of landowners and declared LB 1161 unconstitutional and void because it improperly gave the governor authority over pipeline approval. In January 2015, the Supreme Court reversed the lower court ruling because only four out of seven judges found LB 1161 unconstitutional (one vote short of the five required for constitutional issues). The three dissenting judges declined to address the constitutionality of LB 1161, instead finding the landowners lacked standing as taxpayers. However, every judge to weigh in on the issue has found LB 1161 unconstitutional.

After TransCanada later initiated condemnation proceedings, about 70 landowners re-filed challenges to LB 1161, and a judge granted an injunction halting the eminent domain process. All of TransCanada’s eminent domain proceedings in Nebraska were put on hold, while the constitutional challenges made their way back up to the Nebraska Supreme Court.

In September 2015, TransCanada shifted strategies by withdrawing from the Nebraska lawsuit and instead filing an application with the PSC. However, after the Obama Administration rejected the Keystone XL presidential permit several months later on Nov. 6, 2015, TransCanada withdrew its Keystone XL application to the Nebraska PSC.

An ongoing mystery is why TransCanada never “twinned” Keystone XL with Keystone 1 for the several hundred miles of route through Nebraska — using the existing easements negotiated with landowners to place the pipeline on the same parcels of land.

One theory is TransCanada wanted to place a second pipeline next to Keystone 1 — as well as Keystone XL — so they would have four pipelines, instead of two. However, with the collapse of oil prices, that scenario is unlikely.

TransCanada’s route through Nebraska remains illogical, risky and a major obstacle to the building of Keystone XL.