By Michelle Bigelbach
The Courier 

Keystone XL Progress In The Hands Of SCOTUS


As the Keystone XL Pipeline project continues to encounter legal battles and delays, the Trump administration has requested the U.S. Supreme Court to revive the permit program that would allow the pipeline and other new oil and gas pipelines to cross waterways with little review. The permit program, also known as Nationwide Permit (NWP) 12, allows pipelines to be built across streams and wetlands with minimal review if they meet certain criteria. The permit isn’t specific to the Keystone XL project as the permit is also utilized by other pipeline projects across the United States and could add as much as $2 billion in costs to these other projects.

This legal battle started in April, when Federal Judge Brian Morris in Great Falls nullified the Army Corps of Engineers Permit to dredge and fill across 200 streams and rivers along the portion of the pipeline that runs through the United States. The judge stated the permit did not follow rules under the National Environmental Protection Act (NEPA) and the Endangered Species Act, and therefore was remanded to the Corps of Engineers to become compliant with those two acts. In May, the United States Court of Appeals for the Ninth Circuit left in place Judge Morris’ decision, while the Army Corps had pushed to allow approval for the construction to continue as the appeal is heard.

In order to continue to salvage the construction season and move forward on the project, on June 15, U.S. Solicitor General Noel Francisco asked the U.S. Supreme Court to block Morris’ original ruling and let the permit program to operate while the lawsuit goes through the court process. “The district court had no warrant to set aside NWP 12 with respect to Keystone XL, let alone for the construction of all new oil and gas pipelines anywhere in the country,” Francisco wrote in the government’s application to the court. The application also stated Morris shouldn’t have blocked the program, which has been in effect since the 1970s, and the Army Corps and private companies “rely on it for thousands of activities annually.”

Senator Steve Daines has been an outspoken supporter of the Keystone XL Pipeline, stating “I’m glad to see President Trump keeping up the fight to support the Keystone XL Pipeline and taking this straight to the highest court. The Keystone XL Pipeline will create Montana energy jobs, spur revenue for local schools and protect our energy security. I will continue working with the Trump administration as we move forward to keep construction of the Keystone XL Pipeline on track.” Senator Tester also continues to support the project. In a statement to the Courier, Tester’s spokesperson Roy Loewenstein stated, “Senator Tester continues to support responsible development of the pipeline as long as it is constructed with American steel; includes robust consultation with Tribes; and permitting, construction and operation are held to the highest possible safety and environmental standards.”

The Keystone XL Project has been decades in the making, with most of the project’s momentum being made in 2017 after President Trump took office. He pushed for federal permits that have been canceled, denied or delayed during the previous administration, and as a result, legal actions in terms of these permits had continued to plague the project. In March of 2019, President Trump overcame injunctions issued by Judge Morris by reworking administrative rules and issued a permit to cross the border however the Ninth Circuit Court of Appeals had to hear arguments on the judge’s decision, ultimately overturning the ruling. In August, TC Energy was given the permission to proceed however due to the seasonal work of construction, the project began in April. In Phillips and Valley County, work officially began at that time, and ended in May. According to the Billings Gazette, site work for labor camps near Baker, Mont., and Philip, S.D., has started however there has been no date to occupy them as plans requested from the company to the state to ensure the safety of workers from coronavirus had not yet been received.

In the wake of construction, environmental and Native groups have continued their opposition to the project. Members of the Assiniboine-Sioux, the Blackfeet and the North Cheyenne tribes held a ceremony on the Bureau of Land Management’s public land west of the pipeline in Valley County in April while Northern Plains, a grassroots conservation and family agriculture group, has been vocal with being plaintiffs in various lawsuits prevening the construction of the project. “The Keystone XL pipeline threatens our water, climate and the rural and tribal communities who depend on these irreplaceable resources,” stated Dena Hoff, a Northern Plains member and Glendive, Mont., rancher.

TC Energy spokesperson Sara Rabern told the Courier in April, “We have and will continue to do everything possible to engage with our stakeholders and rights holders along the pipeline route and to answer peoples’ questions and address their concerns. We understand that not everyone agrees, and we respect the various viewpoints on this project. We also respect their right to hold peaceful and legal demonstrations.”


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