Keystone XL southern leg permitted as early as Monday

As a deadline rapidly approaches that will automatically permit the construction of the southern leg of the controversial Keystone XL pipeline, an increasingly vocal group of landowners, environmentalists and even tea party members are saying that the U.S. Army Corps of Engineers is now ramming the project through without any public input or environmental review.

On May 11, the Corps confirmed that pipeline owner TransCanada filed applications to build the project’s southern leg, which will move oil from the tar sands of Alberta, Canada, under a process called Nationwide Permit 12, or NWP 12. The permits have already been granted and are under review – but do not require an environmental impact statement. Under NWP 12 protocol, if the Corps fails to finalize review within 45 days, the permits are automatically granted to TransCanada.

TransCanada submitted applications to Corps district offices in Galveston, Texas; Tulsa, Okla.; and Ft. Worth. Corps spokespersons confirmed in an email that the deadline for concluding reviews at its Galveston office is Monday, and Tulsa is Thursday. The Ft. Worth application is held up, pending information still needed from TransCanada, and no timeline on that is available. But the Corps confirms that TransCanada does not not need to have permits in all districts in order to begin construction.

“It’s clear that they’re really facilitating a rubber stamp for TransCanada at this stage,” said Kim Huynh, federal dirty fuels campaigner at environmental organization Friends of the Earth.

“NWP 12 is a process through the Army Corps for projects that cross wetlands and streams. That’s what the Army Corps does. TransCanada is exploiting this permitting process to get a rubber stamp for this project,” she added. “Which is why we think it’s so important for [Environmental Protection Agency] director Lisa Jackson to step in and stop this.”

The EPA has refused to comment on the project, saying it’s not in their jurisdiction.

In February, after the Obama administration denied a permit for the entire Keystone XL pipeline, parent company TransCanada announced it would split the project into two legs, pushing forward with the southern segment from its oil storage facilities in Cushing, Okla., to the Gulf of Mexico while the company reapplied for permits that blocked the building of the northern segment. Because the southern segment does not cross a border, it did not need the approval of President Obama the EPA, which found plenty of red flags in the original federal proposal. During a March 22 speech in Cushing, Obama announced that his administration would expedite the completion of the southern leg, which is now called the Gulf Coast Pipeline Project, saying the country needed the oil and the jobs.

Both pipeline foes and the Republican Party saw this endorsement as the president taking political cover in the ability to claim the jobs and the oil that might move through the southern leg.

“The administration stepped up and sold us out,” said David Daniel, speaking during a press conference in early June. Daniel founded the Texas-based group Stop Tarsands Oil Pipelines, or STOP, after he was told by a neighbor four years ago that TransCanada had trespassed on his 20-acre property near Winnsboro in East Texas and surveyed the pipeline route without ever informing him.

This was followed by several threatening letters from TransCanada attorneys who told him they would use eminent domain to seize his property unless he signed an easement agreement, which he eventually did. But he and STOP have continued to fight the pipeline, especially since the Army Corps took over and its NWP 12 process shut every stakeholder out of the dialog.

“The segmentation has locked us out of the public comments and our request for transparency has been denied by the very nature of this process,” he added in the press conference.

The issues, say Daniel and others, are several. One is public access to information and lack of input in the process. When he tried to get basic information about the pipeline route, construction specs, contents and timeline – on a project that would split his property in half – he was denied any information. He then dug in and started finding information by reading the original Keystone XL pipeline environmental impact statement, talking to contractors who would work on the project, visiting those affected by a tar sands oil spill in Kalamazoo, Mich., and making multiple trips to Washington to confront EPA and even White House officials directly.

Rita Beving, a consultant with the East Texas Subregional Planning Commission, which represents several communities, was concerned with the 631 streams and wetlands crossed by the pipeline just in the state of Texas, and had attorneys call the Corps for information. “We were told by the Corps district office in Ft. Worth that we’d have to get a FOIA to get any information,” she said. That process can be stalled for months or years.

She referenced a letter, sent by Dr. Jane Watson of the EPA’s Region Six office, which covers all of Oklahoma and Texas and thus the entire route of the Gulf Coast Pipeline, alerting the Corps that a large number of the water crossings on the original Keystone XL project did not meet the criteria for the NWP 12 process – meaning there was a greater potential for affecting water crossings than was allowed. EPA has refused to comment on the letter or the claims in it, but Beving says as far as she knows it was never acknowledged.

“My concern is: Why isn’t the Army Corps of Engineers coordinating with my cities?” says Beving. “It also appears that they’re not coordinating much with Region Six EPA.”

The Corps spokesperson explained, “The EPA letter was in response to a notification from the Galveston District on the Keystone XL Pipeline, which has been withdrawn.” Translation: TransCanada changed the name of the project and the permit process, so those are no longer valid complaints, despite the fact that the water crossings may be unchanged.

As explained in a statement released by the Corps, Section 404 of the Clean Water Act allows the Corps to issue generalized permits covering entire projects that have “minimal individual and cumulative adverse environmental effects.” In a follow-up email, Corps spokespersons explained that its regulatory authority extends only to the water crossings, and that: “Pipelines that are built to avoid and minimize impacts to waters and wetlands may have only ‘minimal individual and cumulative adverse environmental effects’ to those resources.”

Meaning that “cumulative” and other “environmental” impacts are limited to the technical manipulation of the water crossings, which can be handled in one blanket permit without considering unique environmental impacts or circumstances. No other environmental review necessary.

Daniel says that concern for his family’s welfare drove him to seek answers for what, exactly, would be running through the pipeline, at what pressure, and what he was supposed to do if it leaked on his property. What he found was “sad,” he said.

“You start questioning the whole process,” he said, reached by phone from Texas. “The environmental review process is just something that is for placating the people, just so they believe that there is a process in place that works. But then you find out that’s not true.”

Daniel gave several examples of the circuitous logic that governs the pipeline permitting process. For instance, he was concerned after he learned that pipelines might not be designed for the extremely heavy tar sands oil, or “bitumen,” which has to be diluted with other toxic chemicals in order to be able to move through the lines. There is no information available about this mix. In reading the environmental impact statement prepared for the now-withdrawn Keystone XL project, Daniel found that the State Department said it could not do an adequate chemical analysis on the oil running through the pipe because the elements that make up the mix are “not disclosed by the shippers, as they are considered proprietary information by the shippers.”

Pipeline operator Enbridge Energy Partners found this out the hard way when its pipeline leaked into the Kalamazoo River in July 2010. It has cost them a reported ten times the normal cost to clean up the spill, because no one knew what was in the pipe. When sued for adverse health effects, the company claimed in court that it was not responsible for toxins released by the spill because the chemical makeup of the diluted bitumen – “dil-but” – was not known, but had been been permitted by the U.S.

“This is something new, this is something different different, and it’s not being treated differently,” said Daniel.

The Corps responds: “If a project meets the terms and conditions of NWP 12, impacts to waters and wetlands are minimal and the Corps does not notify the public.” They referred further inquiries to TransCanada and noted that FOIA requests were required to release any other information.

“There is really nothing stopping TransCanada from getting their permit, legally,” confirmed Huynh. “As far as this NWP-12 process, [the Corps is] not accountable to anybody. They’re using a process that’s for small regional projects – but this is a major national pipeline carrying some of the world’s dirtiest oil across the country.”

-- Additional reporting by Kim Murphy

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