Janine Jackson: One of the first things Donald Trump did upon taking office was to reverse the Obama administration’s permit rejection for the Keystone XL pipeline, which would move crude from oil sands in Canada to Oklahoma and the Gulf Coast. Restarting work on this extension of the existing Keystone pipeline, along with greenlighting the likewise hotly contested Dakota Access pipeline, was part of what one newspaper called Trump’s “ambitious plans” for a US “makeover.” A federal judge has just blocked construction on Keystone XL again, however, seeming to suggest, essentially, that Trump’s “because I want to” reasoning was insufficiently persuasive.
Here to help us understand this ruling and where it leaves us is Jackie Prange, senior attorney and managing litigator with the Natural Resources Defense Council. She joins us now by phone from the Bay Area. Welcome to CounterSpin, Jackie Prange.
Jackie Prange: Hi, thanks for having me.
Let’s look into this ruling from Brian Morris of the US District Court in Montana. What does it say that’s significant?
Well, there are a couple of things in the ruling that are significant. And first off, what you mentioned earlier I think is the main point, which is that construction of the pipeline is blocked by this order. And the reason the court felt that there shouldn’t be any construction is because the environmental review documents underlying the approval of the pipeline were flawed, and needed to be revisited by the administration.
The judge lists a few things, essentially, that the Trump administration did wrong in their abrupt reversal of the Obama administration’s ruling. What were some of the things that he suggested had been done inappropriately, or ignored?
Part of this goes back to some of the history here. And it’s important to remember that in 2015, the Obama administration denied the pipeline, rejected it, because of its climate and other impacts.
And when the Trump administration tried to reverse that decision and fast-track it, it didn’t do what it was supposed to under the law. It relied on very old environmental review documents that were there since the Obama administration. These documents were prepared in 2014, and so it’s using those documents, many years later, to support an approval of the pipeline, when they had supported a denial of the pipeline.
And so the judge ordered the government to go back and review changes that happened since 2014 that are really critical. For example, changes in the oil market: Since 2014, there has been a huge drop in oil prices, and that could affect whether this pipeline is viable, and whether it will increase the rate of tar sands production in Canada. This pipeline’s designed to bring dirty tar sands fuel to the United States from Canada. And one of the big areas of dispute is whether that would happen anyway even without the pipeline, and so oil prices are really critical to that decision.
Some other things that the government needs to address are whether there will be cumulative effects, with approvals of other pipelines, on greenhouse gases.
And the administration also ignored important information, new information, about oil spills, including a big oil spill on another pipeline, the Keystone 1 pipeline, we call it, that TransCanada currently operated. There was a large spill that was not covered in the environmental review document.
And there’s also one other, different sort of claim, that I think is really important and telling about how the Trump administration dealt with this approval. What the court said was, in deciding that this pipeline was in the national interest, the Trump administration had simply disregarded “prior factual findings regarding climate change.”
So in 2015, the Obama administration said, this pipeline is not in our national interest because of its effects on climate change, and because it harms the US’s leadership role on the issue. And then in 2017, the Trump administration reversed that finding, without any sort of reasoned explanation. The court said, “That can’t happen,” and sent it back on those grounds.
The ruling is being framed everywhere as a setback for Trump, and it is, certainly, on some level. But that seems to me to be helping him to dismiss the rule as “merely political.” And it seems more important to talk about what the ruling means for the planet, for the environment, for the indigenous communities that that the pipeline would go through, for the air and the water. This framing of it as a kind of, “Obama did it, Trump took it back,” seems to me to be missing the real core here.
Yes, that’s right. This is really an extremely large pipeline for a very dirty oil source, and I think that’s important for people to understand. We’re not just talking about any oil. We’re talking about tar sands oil,that is in many cases strip-mined from the Earth, and one of the most carbon-intensive fuels on the planet.
So that’s absolutely true.
And I think it also speaks to a larger importance about how this administration deals with facts, and deals with the facts of climate change. Here, the Trump administration wanted to just ignore that, or sweep that under the rug, and the court is saying, “No, that can’t happen.”
I’m a little concerned about this idea that I’m seeing in some stories that “they need to go back and make a better case,” or, as I’ve seen it put in some places, they need to “show their work,” you know, “They need to explain why they reversed this Obama rejection.”
But is there really a schema where a tar sands pipeline can be shown to not contribute to greenhouse gases, and endanger land and water? It almost sounds like, if they could just hit on the right formula for selling it, that it would somehow make sense. I’m not sure I understand that.
I mean, no. These pipelines especially, and tar sands in particular, do have an extremely important impact on our climate, and so that is true that the ruling–I think it’s important for people understand that this was a huge win. And it’s very important for the rule of law, and for the importance of facts and truth.
But at the same time, this is just one battle. This war is not over yet. And what’s going to happen is, there’s another opportunity for the administration to consider this decision, and consider the facts. What the ultimate outcome of that will be, I can’t say yet; maybe we have a clue based on past behavior… But the win is significant, in that it does require adherence to the rule of law. This project is not dead yet, by any means, and I do think it’s important for people to understand that, and to understand that the fight’s going to continue.
Well, absolutely. Of course, being that it is a business, slowing it down can also have its own impact. But I guess I’m struck by news reports that are emphasizing construction “temporarily” halted or “delayed”.
And I know that that’s literally true, but I’m concerned by this undertone of inevitability, not just of this pipeline, but basically of the US just extracting every last bit of fossil fuel that’s there, despite what we know about the impact on the climate.
But then, you turn to another page in the paper, and you read about Wales, or you read about Spain. It seems like other countries are showing us models to make “Keep It in the Ground” be what we’re really doing, to make it more than a slogan. It’s not that it’s impossible.
And I know it’s hard in these times to be optimistic. You know, the most recent IPCC report was really hard to take. And, obviously, the administration’s utter refusal to consider the reality of climate change is very difficult.
But I think this is a glimmer of hope in that broader picture, in that at least parts of our government, including the judicial branch, are taking climate change seriously. And that there is some hope. And that it matters whether the government can just say, “We totally are going to ignore all the facts,” and that can’t hold up in court.
So I try to remain optimistic. I do know it’s hard in these times, but I do think there is still hope.
Absolutely, and, well, what else can you do? Let me just ask you, finally, I know that the NRDC has been involved in this case, along with Indigenous Environmental Network and the Center for Biological Diversity. There’s a lot of work that goes into a case like this, and it isn’t just lawyers; there’s a whole lot of folks who are working on the Keystone case, just as on Dakota Access. And it’s not just about defeating a particular pipeline, but groups are being formed, and communities are being formed, and folks are kind of finding their strength in a new way. Even outside the law, there’s a lot that’s positive that’s going on.
That’s absolutely true, and this case, and my participation in this case, is just one small part. It’s really the advocacy of so many people and groups over the years that has even gotten us to this point where, if they hadn’t been involved, this pipeline would have been built years ago.
And so, certainly, there are many tools left in the toolbasket. The Nebraska Supreme Court is considering the route through Nebraska, and so there are many different fronts on which the fight continues. This is just one of them, and I think that’s absolutely true that everyone has a different part to play.
We’ve been speaking with Jackie Prange, senior attorney and managing litigator with the Natural Resources Defense Council. You can find their work online at NRDC.org. Jackie Prange, thank you so much for joining us this week on CounterSpin.