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Court Throws Out Lawsuit Blocking Keystone XL Construction

August 5, 2019

A three-judge panel of the U.S. Ninth Circuit Court of Appeals reversed a lower court’s decision blocking completion of the Keystone KL oil pipeline.

A three-judge panel of the U.S. Ninth Circuit Court of Appeals reversed a lower court’s decision blocking completion of the Keystone KL oil pipeline.

The ruling marks the latest skirmish in a conflict that has been raging for nearly a decade, involving two presidential administrations in Washington, D.C. with vastly different views on the nation’s energy future.

Upon completion, the $8 billion Keystone XL pipeline is expected to have the capacity to transport more than 800,000 barrels of oil per day from oil fields in northeastern Alberta through eastern Nebraska and on through already completed or previously existing pipelines to refineries on the U.S. Gulf Coast.

Presidential Change, Policy Reversal

In 2015, then-President Barack Obama, ignoring his own State Department’s determination the Keystone XL pipeline would create jobs at little or no risk to the environment, rejected the final leg of the Keystone XL pipeline. Obama said the project didn’t serve the national interest.

Following through on a campaign pledge, President Donald Trump on March 24, 2017 signed an executive order reversing Obama’s decision, directing the State Department to issue a construction permit.

Construction moved forward until November 2018 when Judge Brian Morris of the U.S. District Court in Montana sided with environmental groups, including the Natural Resources Defense Council and the Sierra Club, who had sued to halt the pipeline, and blocked the pipeline’s construction. Morris ruled the Trump State Department had not adequately addressed the pipeline’s expected environmental impact, primarily its effect on the climate, when it issued the permit.

Trump scrapped the State Department permit in March 2019, replacing it with a new, presidential permit for Keystone XL. The administration says a permit originating in the White House is not subject to environmental reviews.

Meanwhile, the administration and TC Energy, formerly TransCanada Corp, the pipeline’s owner, appealed the district court’s decision to the Ninth Circuit Court of Appeals, requesting it throw out Morris’ ruling, arguing the case was moot because the State Department’s permit at issue in the case had been revoked.

The San Francisco-based Ninth Circuit’s three-judge panel agreed on June 6, tossing the lawsuit out of court and revoking the permanent restraining order Morris had issued.

Delays Continued

Despite the end of this lawsuit, construction on the final portions of the Keystone XL pipeline will not begin immediately. A state lawsuit in Nebraska challenging the pipeline’s completion is ongoing, and TC Energy still has to obtain certain permits from the U.S. government for construction.

In a case pending before the Nebraska State Supreme Court, private landowners, the Ponca Tribe of Nebraska, the Yankton Sioux Tribe, and the Sierra Club have argued the Supreme Court should not allow pipeline construction to proceed because the state allegedly did not follow the proper procedure in approving the route.

The project must also acquire additional permits from the U.S. Army Corps of Engineers and the Interior Department, although TC Energy says it believes those permits will be issued because the project has the Trump administration’s support.

‘Endless Attacks’

Environmentalists should stop fighting the project, because pipelines are a safe way to transport oil, says Dan Kish, a distinguished senior fellow at the Institute for Energy Research.

“The endless attacks on the Keystone XL pipeline by opponents of affordable energy have to stop,” said Kish. “We need safe and dependable pipelines to move North American energy, and the Keystone XL is just that.

“It’s a shame political demagogues have kept its benefits from Americans for this long,” Kish said.

Keystone XL and other pipelines are necessary to maintain the United States’ energy dominance, says Craig Rucker, president of the Committee for a Constructive Tomorrow (CFACT).

“The rise of the United States as a global energy superpower is rooted in favorable geology, mineral rights enabling landowners to team up with oil and gas companies to develop resources, and advances in technology, including fracking and horizontal drilling, that have made extraction of resources both economical and environmentally responsible,” Rucker said. “That leaves infrastructure, which still needs to be upgraded and expanded.

“Pipelines, like the Keystone XL, are key to all of this, which is why they are under assault by environmentalists,” Rucker said. “That’s also why the Ninth Circuit Court’s ruling is to be welcomed.”

Bonner R. Cohen, Ph.D. (bcohen@nationalcenter.org) is a senior fellow at the National Center for Public Policy Research and a senior policy analyst with CFACT.

Author
Bonner R. Cohen is a senior fellow with the National Center for Public Policy Research, a position he has held since 2002.
bcohen@nationalcenter.org

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