Keystone XL Clone

Federal Court Gives Blessing to Covertly Approved Enbridge Cross-Border Tar Sands Pipeline Expansion

A federal court has ruled that the Enbridge Alberta Clipper (Line 67) cross-border tar sands pipeline expansion project, permitted covertly and behind closed doors by the Obama Administration, got its greenlight in a legal manner. 

The ruling — made by Michael J. Davis, a President Bill Clinton-appointee — comes just over a year after several environmental groups brought a lawsuit against the U.S. Department of State for what they said was a violation of the National Environmental Policy Act (NEPA). NEPA calls for robust public hearings and public commenting periods for any major proposed energy infrastructure projects, referred to by some as the “Magna Carta of environmental law.”

Judges Nixing Keystone XL South Cases Had Tar Sands-Related Oil Investments

On August 4, the U.S. Appeals Court for the 10th Circuit shot down the Sierra Club's petition for rehearing motion for the southern leg of TransCanada's Keystone XL tar sands export pipeline. The decision effectively writes the final chapter of a years-long legal battle in federal courts. 

But one of the three judges who made the ruling, Bobby Ray Baldock — a Ronald Reagan nominee — has tens of thousands of dollars invested in royalties for oil companies with a major stake in tar sands production in Alberta.  And his fellow Reagan nominee in the Western District of Oklahoma predecessor case, David Russell, also has skin in the oil investments game.  

The disclosures raise questions concerning legal objectivity, or potential lack thereof, for the Judges. They also raise questions about whether these Judges — privy to sensitive and often confidential legal details about oil companies involved in lawsuits in a Court located in the heart and soul of oil country — overstepped ethical bounds. 

These findings from a DeSmog investigation precede President Barack Obama's expected imminent decision on the northern, border-crossing leg of Keystone XL.

Emails: Enbridge Attorney, Lobbyist Wrote Provisions into Wisconsin Budget for "Keystone XL Clone" Pipeline Leg

Emails reveal that an attorney and lobbyist for Canadian pipeline company giant Enbridge helped draft the controversial provision placed into the 2015 Wisconsin Budget set to fast-track expansion of the company's Line 61 pipeline. 

The emails, published by the Wisconsin Legislative Reference Bureau and first covered by Wisconsin Public Radio, emerge just months after DeSmog revealed emails showing Enbridge's attorney for its border-crossing Alberta Clipper expansion project proposal, which connects to Line 61 in Superior, Wisconsin, doing much the same to curry favor with the U.S. Department of State to fast-track permitting for that project.  

Together, Alberta Clipper (also called Line 67) and Line 61 are two parts of the four that make up the broader “Keystone XL Clone” pipeline system. That system carries tar sands bitumen extracted in Alberta down to Gulf coast refineries and the global export market.

Emails: How State Department Secretly Approved Expanding Piece of Enbridge's "Keystone XL Clone"

State Department Enbridge Emails

DeSmogBlog has obtained dozens of emails that lend an inside view of how the U.S. State Department secretly handed Enbridge a permit to expand the capacity of its U.S.-Canada border-crossing Alberta Clipper pipeline, which carries tar sands diluted bitumen (“dilbit”) from Alberta to midwest markets. 

The State Department submitted the emails into the record in the ongoing case filed against the Department by the Sierra Club and other environmental groups in the U.S. District Court for the District of Minnesota. Collectively, the emails show that upper-level State Department officials hastened the review process on behalf of Enbridge for its proposed Alberta Clipper expansion plan, now rebranded Line 67, and did not inform the public about it until it published its final approval decision in the Federal Register in August 2014.

According to a March 17, 2014 memo initially marked “confidential,” Enbridge's legal counsel at Steptoe & Johnson, David Coburn, began regular communications with the State Department on what the environmental groups have dubbed an “illegal scheme” beginning in at least January 2014. 

Enbridge State Department Emails
Image Credit: U.S. District Court for the District of Minnesota

Environmental groups have coined the approval process an “illegal scheme” because the State Department allowed Enbridge to usurp the conventional presidential permit process for cross-border pipelines, as well as the standard National Environmental Policy Act (NEPA) process, which allows for public comments and public hearings of the sort seen for TransCanada's Keystone XL pipeline.

Further, the scheme is a complex one involving Enbridge's choice to add pressure pump stations on both sides of the border to two pipelines, Enbridge Line 3 and Enbridge Line 67, to avoid fitting under the legal umbrella of a “cross-border” pipeline.

Hastening the approval process — and thus dodging both the conventional presidential permit and NEPA process — came up in a June 6, 2014 memo written by Coburn and his Steptoe co-counsel Josh Runyan. Enbridge's legal argument centered around ensuring profits for its customers “consistent with its obligations as a common carrier.”

State Department Enbridge Emails
Image Credit: U.S. District Court for the District of Minnesota

Enbridge Gets Another Federal Tar Sands Crude Pipeline Permit As Senate Debates Keystone XL

On January 16, the U.S. Army Corps of Engineers gave Enbridge a controversial Nationwide Permit 12 green-light for its proposed Line 78 pipeline, set to bring heavy tar sands diluted bitumen (“dilbit”) from Pontiac, Illinois to its Griffith, Indiana holding terminal.

The permit for the pipeline with the capacity to carry 800,000 barrels-per-day of tar sands dilbit came ten days after the introduction of S.1 — the Keystone XL Pipeline Act — currently up for debate on the U.S. Senate floor, which calls for the permitting of the northern leg of TransCanada's Keystone XL

Enbridge Line 78 Army Corps of Engineers Permit

Griffith is located just south of Whiting, Indiana, home of a massive refinery owned by BP. In November 2013, BP opened its Whiting Modernization Project, which retooled to refine up to 85-percent of its capacity as heavy dilbit from the tar sands, up from its initial 20-percent capacity.

Obama Signals Keystone XL "No" on Colbert Report As Enbridge "KXL Clone" He Permitted Opens

In his December 8 “Colbert Report” appearance, President Barack Obama gave his strongest signal yet that he may reject a presidential permit authorizing the Alberta to Cushing, Oklahoma northern leg of TransCanada's Keystone XL tar sands pipeline. 

Yet just a week earlier, and little noticed by comparison, the pipeline giant Enbridge made an announcement that could take the sails out of some of the excitement displayed by Obama's “Colbert Report” remarks on Keystone XL North. That is, Enbridge's “Keystone XL Clone” is now officially open for business

“Keystone XL Clone,” as first coined here on DeSmogBlog, consists of three parts: the U.S.-Canada border-crossing Alberta Clipper pipeline; the Flanagan, Illinois to Cushing Flanagan South pipeline; and the Cushing to Freeport, Texas Seaway Twin pipeline.

Enbridge announced that Flanagan South and its Seaway Twin connection are now pumping tar sands crude through to the Gulf of Mexico, meaning game on for tar sands to flow from Alberta to the Gulf through Enbridge's pipeline system.

Alberta Clipper, now rebranded Line 67, was authorized by Hillary Clinton on behalf of the Obama State Department in August 2009 and got a quasi-official permit to expand its capacity by the State Department over the summer. That permit is now being contested in federal court by environmental groups.

Flanagan South, meanwhile, exists due to a legally contentious array of close to 2,000 Nationwide Permit 12 permits handed out by the U.S. Army Corps of Engineers, which — as with Alberta Clipper expansion — has helped Enbridge usurp the more democratic and transparent National Environmental Policy Act (NEPA) review process

Gulf-Bound Tar Sands for Export? Follow the Oiltanking Trail

The U.S. Senate failed to get the necessary 60 votes to approve the northern leg of TransCanada's Keystone XL pipeline, but incoming Senate Majority Leader Mitch McConnell (R-Ky.) already promised it will get another vote when the GOP-dominated Senate begins its new session in 2015.

Though the bill failed, one of the key narratives that arose during the congressional debate was the topic of whether or not the tar sands product that may flow through it will ultimately be exported to the global market. President Barack Obama, when queried by the press about the latest Keystone congressional action, suggested tar sands exports are the KXL line's raison d'etre.

Obama's comments struck a nerve. Bill sponsor U.S. Sen. Mary Landrieu (D-La.) and supporter U.S. Sen. John Hoeven (R-ND) both stood on the Senate floor and said Keystone XL is not an export pipeline in the minutes leading up to the bill's failure.

“Contrary to the ranting of some people that this is for export…Keystone is not for export,” said Landrieu, with Hoeven making similar remarks.

But a DeSmog probe into a recent merger of two major oil and gas industry logistics and marketing companies, Oiltanking Partners and Enterprise Products Partners, has demonstrated key pieces of the puzzle are already being put together by Big Oil to make tar sands exports a reality. 

And both Keystone XL and Enbridge's “Keystone XL Clone” serve as key thoroughfares for making it happen.

State Dept. Overseers of Contentious Enbridge Tar Sands Pipeline Workaround Have Industry, Torture Ties

The Sierra Club, National Wildlife Federation (NWF) and other green groups recently revealed that pipeline giant Enbridge got U.S. State Department permission in response to its request to construct a U.S.-Canada border-crossing tar sands pipeline without earning an obligatory Presidential Permit.

Enbridge originally applied to the Obama State Department to expand capacity of its Alberta Clipper (now Line 67) pipeline in November 2012, but decided to avoid a “Keystone XL, take two” — or a years-long permitting battle — by creating a complex alternative to move nearly the same amount of diluted bitumen (“dilbit”) across the border.

The move coincides with the upcoming opening for business of Enbridge's “Keystone XL” clone: the combination of the Alberta Clipper expansion (and now its alternative) on-ramp originating in Alberta and heading eventually to Flanagan, Ill., the Flanagan South pipeline running from Flanagan, Ill. to Cushing, Okla. and the Cushing, Okla. to Port Arthur, Texas Seaway Twin pipeline.

Together, the three pieces will do what TransCanada's Keystone XL hopes to do: move dilbit from Alberta's tar sands to Port Arthur's refinery row and, in part, the global export market.

Environmental groups have reacted with indignation to the State Department announcement published in the Federal Register on August 18. The public commenting period remains open until September 17.

Jim Murphy, senior counsel for NWF, referred to it as an “illegal scheme,” while a representative from 350.org says Enbridge has learned from the lessons of its corporate compatriot, TransCanada.

“When we blocked Keystone XL, the fossil fuel industry learned that they have a much stronger hand to play in back rooms than on the streets,” said Jason Kowalski, policy director for 350.org. “They will break the law and wreck our climate if that's what it takes for them to make a buck.”

But as the old adage goes, it takes two to tango. 

That is, influential State Department employees helped Enbridge find a way to smuggle an additional 350,000 barrels of tar sands per day across the border without public hearings or an environmental review. 

Court: Key Environmental Law Doesn't Apply to Part of Enbridge Keystone XL "Clone"

Keystone XL Clone Flanagan South

A U.S. District Court for the District of Columbia has ruled that Enbridge’s 600-mile-long Flanagan South Pipeline, a Keystone XL “clone,” is legally cleared to proceed opening for business in October

Approved by the U.S. Army Corps of Engineers via a controversial regulatory mechanism called Nationwide Permit 12 (NWP 12), Judge Kentanji Brown Jackson, an Obama-appointed judge, ruled NWP 12 was not a federal government “action.” Thus, Brown posited that Enbridge did not need to use the National Environmental Policy Act (NEPA) regulatory process and NWP 12 was up to snuff.

The case pitted the Sierra Club and the National Wildlife Federation (NWF) against the Army Corps of Engineers and Enbridge and has lasted for just over a year, with the initial complaint filed on August 13, 2013 (Case #: 1:13-cv-01239-KBJ). 

Sierra Club and NWF submitted the recent precedent-setting Delaware Riverkeeper v. Federal Energy Regulatory Commission (FERC) case as supplemental authority for Sierra Club v. U.S. Army Corps of Engineers on the day that decision was handed down. 

But Jackson brushed it aside, saying it doesn't apply to Flanagan South, despite the fact that the Delaware Riverkeeper v. FERC decision said that a continuous pipeline project cannot be segmented into multiple parts to avoid a comprehensive NEPA review.

Although Enbridge will operate this project as a single pipeline, Flanagan South was broken up into thousands of “single and complete” projects by the Army Corps of Engineers. This helped Enbridge skirt the requirement of a more comprehensive and public-facing NEPA review, which involves public hearings and a public comment period.

“Here, not only was there no NEPA analysis of this massive project, there was never any public notice or opportunity for involvement before it was constructed across four states,” Sierra Club attorney for the case, Doug Hayes, told DeSmogBlog. “The entire thing was permitted behind closed doors.”

For all intents and purposes, then, Flanagan South is a fait accompli and tar sands diluted bitumen (“dilbit”) will begin pumping through it as summer turns to fall. 

Investor Call: Enbridge's Keystone XL Clone Opens in October, Rail Facility to Follow

In a recent quarter two call for investors, Enbridge Inc executives said the company's “Keystone XL” clone — the combination of the Flanagan South and Seaway Twin pipelines — will open for business by October.

As previously reported by DeSmogBlog, Enbridge has committed a “silent coup” of sorts, ushering in its own Alberta to Port Arthur, Texas pipeline system “clone” of TransCanada's Keystone XL tar sands pipeline. Unlike Keystone XL's northern leg, however, Enbridge has done so with little debate. 

With the combination of the Alberta Clipper (now called Line 67, currently up for expansion), Flanagan South and Seaway Twin pipelines, Enbridge will soon do what TransCanada has done via its Keystone Pipeline System.

That is, bring Alberta's tar sands to Gulf of Mexico refineries and send it off to the global export market.

According to Guy Jarvis, president of liquids pipelines for Enbridge, even though the Cushing, Oklahoma to Port Arthur, Texas Seaway Twin is technically operational, it will not become functional until Flanagan South opens in October. 

“The base plan had been, and still is, to do the line fill of the Seaway Twin from Flanagan South. So we don't expect to see too much off the Seaway Twin until Flanagan South does go into service,” Jarvis said on the investor call.

“It does have the capability to be line filled at Cushing if the barrels are available and the market signals would suggest that you would want to do that. But at this point in time, we think it will be the base plan that it is filled on from Flanagan South.”

Beyond piping diluted bitumen (“dilbit”) to market, Enbridge also has plans to market dilbit via rail in a big way.

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