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States fight President Biden’s decision to revoke Keystone XL Pipeline permit

President Joe Biden. (Al Drago/Pool/Abaca Press/TNS)

President Joe Biden is being sued after revoking a permit that would grant border-crossing access for the fiercely debated Keystone XL Pipeline.

It’s the latest development in a back-and-forth approval process spanning three presidential administrations. This lawsuit comes after Biden reversed, through executive order, a 2019 approval of the pipeline’s border crossing between the U.S. and Canada by President Donald Trump.

The pipeline, if ultimately placed into operation, would boost shipments of crude oil produced in Canada and the northern U.S. to refineries on the Gulf Coast.

Keystone XL’s actual crossing is already substantially built.

But getting needed U.S. approval to place the line into service has depended on who was in the White House since 2009, when TransCanada, known today as TC Energy, first sought approval for the crossing from the U.S. State Department.

President Barack Obama rejected the initial applications filed by TransCanada.

The company later received approval for an application from Trump, but was then blocked in federal court.

Trump then approved another permit in 2019.

Attorneys general representing 21 states including Oklahoma filed a suit in Texas’ Southern District Federal Court in Galveston on Wednesday challenging Biden’s recent decision to reverse the 2019 Trump permit.

The suit claims Biden’s decision to rescind the permit’s approval oversteps his constitutional authority, given Trump’s approval was made “consistent with multiple acts of Congress.”

“The President has certain prerogatives to act on behalf of the United States in foreign affairs. But as far as domestic law is concerned, the President must work with and abide by the limits set by Congress — whether he likes them or not,” the lawsuit states.

Once operational, Keystone XL would be part of the larger Keystone pipeline system that consists of about 2,700 miles of interconnected pipelines owned by TC Energy in the United States and Canada.

The larger system’s history dates back nearly 15 years to when TransCanada initially proposed building the project. The company obtained a necessary permit from President George W. Bush in 2008 to build the Keystone pipeline from the Canadian province of Manitoba into eastern North Dakota.

From there, Keystone carries Canadian crude south across the Dakotas to Steele City, Nebraska, a community on the Nebraska-Kansas state line.

At Steele City, a branch of Keystone extends east to carry crude to refineries in Illinois. That portion of the system went operational in mid-2010.

A second phase extending the line from Steele City to Cushing was completed and went operational in early 2011.

A third phase, which began operating in 2014, carries crude oil from Cushing to refineries on the Gulf Coast. The Keystone line carries about 500,000 barrels of heavy crude, or oil with a high sulfur content, into the U.S. daily.

This line’s proposed route takes it from Canada into north-central Montana, where it would head southeast across South Dakota and Nebraska to join the original Keystone line at Steele City.

The pipeline would boost not only amounts of Canadian oil that could be shipped, but also would provide a way for producers in the Bakken Shale field and Powder River Basin to get crude oil moved to refiners using pipe instead of having to ship it south by rail.

If brought online, Keystone XL would boost the overall system’s capacity by about 330,000 barrels daily.

Development of the Keystone XL portion of the project faced significant opposition from American Indians and individual landowners. Many praised Biden’s decision to revoke the permit.

When Cheyenne Foote heard that President Joe Biden blocked the Keystone XL pipeline permit on his first day in office, she cried.

Foote, 68, is an elder of the Fort Peck Assiniboine and Sioux Tribes, and she feared the pipeline, which passes through a portion of Montana near the Fort Peck Reservation, would contaminate the tribes’ water supply.

“Oh my gosh, oh my gosh, my prayers have been answered,” Foote said as she wept. “I am so happy. I am just so happy.”

Numerous lawsuits in state and federal courts blocked TC Energy’s progress in getting the line built over time. But the issue blocking its ultimate activation is the federal government’s approval for TC Energy to build needed facilities at the international border.

“The area covered by the authorization extends from the border about 1.2 miles to and including the first pipeline isolation valve in Montana. Though a tiny piece of the larger Keystone project, it is the fulcrum around which XL turns,” the suit asserts.

It argues the U.S. State Department under the Obama administration spent three years after a request for the crossing was filed to conduct an “expansive and lengthy” environmental review of the project, concluding three times that the project would not materially affect greenhouse gas emissions or alter the amount of extracted and combusted crude oil on the world markets.

As that review happened, TC Energy adopted dozens of State Department-requested conditions involving its design, construction and operational plans.

In December 2011, after the State Department concluded it could not authorize the border crossing without additional information, Congress approved a law requiring Obama to either grant TC Energy’s permit request or to inform Congress why he wouldn’t. Obama ultimately rejected the request, saying Congress hadn’t given him enough time to evaluate the State Department’s review.

TC Energy filed a new application to allow the border crossing for Keystone XL in May 2012, bringing additional affirmation to the project’s value, including that it would positively impact the U.S. economy.

Beyond jobs and spending that construction would create, the State Department concluded a completed line would generate tens of millions of dollars in tax revenues for states and local communities.

In late 2015, Obama again denied the permit.

But days after taking office in January 2017, Trump signed a memorandum that invited TC Energy to apply again and ordered his administration to expedite its consideration.

The State Department issued a permit within months that authorized TC Energy to “construct, connect, operate and maintain pipeline facilities at the border of the United States and Canada.”

However, that was blocked by a federal judge in Montana, who sided with plaintiffs, including the Indigenous Environmental Network, by ruling that the agency had violated the Administrative Procedure Act and the National Environmental Policy Act in granting the permit request.

Trump issued yet another permit for the crossing in March 2019, following that up with an executive order setting out procedures the State Department should follow to enable quick turnarounds on future, similar requests.

Construction of the cross-border piece of the line was largely completed before the end of last year, with work getting wrapped before Biden signed an executive order his first day in office titled “protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” A section of that order stated Biden was revoking Trump’s 2019 permit.

The attorneys general argue in their suit that states, counties, local communities and school districts are missing out on tax revenues that would be generated by an operating Keystone XL line.

They assert those revenues would benefit poorer rural areas by giving them additional funds to support public and community services.

The also argue the permit revocation prevents the creation of tens of thousands of potential construction jobs up and down the system.

Earlier this month, a dozen Republican attorneys general sued Biden, challenging his broader climate change order.

A spokesperson for the U.S. Department of Justice had no comment on the latest lawsuit.


(c) 2021 The Oklahoman

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