To begin with, I briefly want to share part of the currently operational Keystone XL southern leg regulatory experience that we went through in the hopes that our experience may help provide some insight into the Army Corps/federal regulators mode of operation and finally what we all may be able to do about it.
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I am a Texas landowner who stood in the way of construction of the southern leg of the Keystone XL pipeline on our property. Despite years of fighting, having both a restraining order and lawsuit against me, sustaining a three-month long aerial tree top blockade with brave protesters from around the country, 24/7 armed security (including assault rifles), many people arrested, helicopters, light-towers, Tasers, pepper spray, the FBI, arrests of those trying to resupply protesters with food and water (including Jill Stein), and being labeled eco-terrorists — the southern leg of the Keystone XL pipeline went through, was built and now carries tar sands from Alberta, Canada, via its direct and originally planned connection to Keystone 1 and 2, on down to refineries on the Texas Gulf Coast. It is only the Northern leg of Keystone XL, which would have terminated in Steel City, Nebraska, that was officially blocked.
East Texas is the water wealthy region of Texas and we understood the potential threat to our water, especially when the US State Department declared in their Environmental Impact Statement for Keystone XL, that as much as 1.7 million gallons per day could be leaking up and down the line without triggering any real time leak detection system. This 1.7 million gallons per day for this one line alone is actually an allowable limit by our federal regulators. Regulators both know and accept that small cumulative leaks can go undetected for years and are an everyday occurrence on pipelines.
This risk to water supplies is not acceptable and yet these pipelines get pushed through via loopholes that circumvent the actual laws that look good on paper, like the National Environmental Policy Act (NEPA), but really mean little in the current court system.
For example, under NEPA it is a federal violation to segment a proposed project, and yet the Keystone XL project was ultimately segmented which was aided by Presidents Obama’s rejection of the entire Keystone XL project, which was then promptly followed by a presidential executive order calling for an expedited review of the southern half of Keystone XL stretching from Cushing, Oklahoma, to Port Arthur, Texas.
Obama said, and I quote:
We’re making this new pipeline from Cushing to the Gulf a priority. So the southern leg of it we’re making a priority, and we’re going to go ahead and get that done. The northern portion of it we’re going to have to review properly to make sure that the health and safety of the American people are protected.
I’m directing my administration to cut through the red tape, break through the bureaucratic hurdles, and make this project a priority, to go ahead and get it done.
The people of Texas and Oklahoma understand why Obama said that the northern portion would need to be reviewed properly to make sure that the health and safety of the people are protected, but we wonder why Obama did not even bother to think that the health and safety of our lives on the southern leg needed any protection.
Permitting for the “the southern part of Keytsone XL” then became the responsibility of the US Army Corps of Engineers who approved the project without conducting any NEPA analysis, and without analyzing the project’s cumulative impacts pursuant to Nationwide Permit 12 and Clean Water Act (CWA) 404.
The Army Corps used a Nationwide Permit 12 that granted blanket approval for the southern legs 2,227 crossings of federal waterways, in Oklahoma and Texas without any environmental impact review or public input, despite the determination by EPA Region VI Associate Director Dr. Jane Watson that the original Keystone XL project was ineligible for this blanket water permit.
The Army Corps abused the nationwide permit program by utilizing tricky legal loopholes to push through Keystone XL’s southern half. The Army Corps artificially divided up what the pipeline company itself refers to as one pipeline, into thousands of individual projects to avoid environmental review. So the Army Corps treated the southern leg of Keystone XL as 2,227 single and complete projects, so as to qualify under the Nation Wide Permit 12 and avoid NEPA compliance.
A temporary injunction was sought out in the US Court of Appeals for the Tenth Circuit. The court decided not to grant a temporary injunction on the construction of the southern half of the Keystone XL pipeline. The 10th Circuit decided that it did not even need to address whether the Army Corps violated the law, because the Court decided that the financial harms to the pipeline company would be too great if the pipeline was stopped.
I tell you all of this because I just read the Department of Justice joint statement regarding the Standing Rock Sioux Tribe versus the US Army Corps of Engineers and in my opinion, the very last line is one of the most important lines and possibly the best way forward for our future generations.
The line states: “It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”
Now, what I have seen in court, these pipeline companies argue that they are the status quo and therefore they serve the broadest public interest, even though these companies, usually due to the claim of proprietary information, do not provide tangible evidence to support their claim.
Evidence actually shows a declining demand for oil.
I think that we and our future generations need to make the fact based scientific argument that the broadest public interest is the health and safety of Earth’s biosphere which supports all life on this planet.
We have alternative sources of energy, however, we do not have alternative sources of available fresh water. Less than 1 percent of the world’s fresh water is accessible for direct human use, and that tiny number is getting smaller because demand is increasing while the supply is decreasing.
The fact that the population is growing rapidly, which puts more pressure on our water supply, combined with the fact that the amount of water is effectively being reduced by pollution and contamination, should make water security a pivotal and primary part of any Public Interest and National Interest Determination regarding projects such as this.
It is not just the inherent environmental risks to water, but it is also the inherent environmental risks associated with climate change and the cost of greenhouses gasses which these fossil-fuel infrastructure projects contribute to through cumulative impacts that collectively result in significant negative actions that take place over a period of time from the past, present and reasonably foreseeable future.
Only recently has the White House ordered federal agencies to consider the environmental costs of greenhouse gases and that they should take climate change into consideration when they review a federal project under the National Environmental Policy Act (NEPA).
Scientific data firmly show that climate change is being caused by human action, or anthropogenic global warming (AGW). The Defense Department states that climate change is a “threat multiplier,” “a present security threat, not strictly a long-term risk.” The Defense Department says global warming “poses immediate risks to US national security” and will exacerbate national security-related threats ranging “from infectious disease to terrorism.”
Therefore, I cannot emphasize enough that just as the Department of Justice joint statement regarding the Standing Rock Sioux Tribe versus the US Army Corps of Engineers states: “It is now incumbent on all of us to develop a path forward that serves the broadest public interest.” Then we should use the established scientific data as evidence that projects like these contribute to global warming, and as the Defense Department says, global warming “poses immediate risks to US national security.” Combine that with the fact that production demand is in decline, then the broadest public interest is arguably not projects like this, but rather projects that move us toward alternative energy projects that actually increase our national security and do not pose such a risk to the health of our environment, which is then mirrored in the health of the people.
I believe that new legislation should be proposed in which broadest public interest and National Interest Determination should define projects, such as those related to fossil-fuel burning, as a contributor to national security threats, and for starters, not be allowed to use eminent domain and the court enforced violent use of force that comes with it.