Trump executive memoranda seek to expedite permits for GHG-intensive Keystone XL, Dakota Access pipelines

President Donald J. Trump has issued several executive memoranda aimed at speeding up consideration by federal agencies of the greenhouse gas-intensive Keystone XL and Dakota Access pipelines.

Two executive memoranda released late Tuesday relate to the controversial projects.

According to a report in the Washington Post, White House spokesperson Sean Spicer said Tuesday that Trump acted because he is “very, very keen on making sure that we maximize our use of natural resources to America’s benefit.”

Because they aim to aid completion of two projects that would facilitate the burning of more than 1.2 million barrels of oil per day and raise the risks of serious environmental damage from spills and leaks, the directives are likely to reignite intense arguments over both pipelines.

The Trump memorandum related to the Keystone XL pipeline invites that project’s developer, the foreign firm TransCanada Keystone Pipeline L.P., to “to promptly re-submit its application to the Department of State for a Presidential permit for [its] construction and operation.”

The permit is necessary because the Keystone XL pipeline would cross the Canada-United States border.

It also imposes a 60-day deadline on the State Department’s consideration of any permit application, suggests that a 2014 environmental impact statement prepared for the project be considered sufficient to comply with applicable federal environmental laws including the National Environmental Policy Act and the Endangered Species Act, and waives all requirements to notify other agencies of the permit application and to wait for their responses before proceeding to a decision.

Trump used language designed to preserve discretion granted to the secretary of state to approve or deny any application TransCanada files.

“Nothing in this memorandum shall be construed to impair or otherwise affect . . . the authority granted by law to an executive department or agency, or the head thereof,” the memorandum says.

At present there is no pending application for a permit to build the Keystone XL pipeline across the Canada-U.S.  border. The Obama administration State Department rejected such an application on Nov. 6, 2015.

Arguments about the economic and environmental impacts of the Keystone XL pipeline raged, and were considered by the Obama administration, for years after it was first proposed by TransCanada in 2008.

The  U.S. Environmental Protection Agency rejected an initial environmental impact statement in July 2010 because it failed to adequately evaluate plans to respond to oil spills, pipeline safety issues, or potential greenhouse gas emissions associated with the project.

After a second EIS was prepared in 2011, the State Department delayed consideration of a permit to consider impacts on the Sand Hills region of Nebraska.

The Obama administration then rejected the pipeline construction application in January 2012.

TransCanada re-applied for the permit later that year. The 2014 EIS referred to in Trump’s memorandum was prepared after that second application.

keystone-xl-route
Three phases of the Keystone XL pipeline are complete. Only the fourth phase, which is planned to run from a point near Hardisty, Alberta, to Steele City, Nebraska, is not yet complete. That portion of the project was blocked by the Obama administration. Graphic courtesy TransCanada L.P. and Wikimedia.

The 1,204 mile-long Keystone XL pipeline would run from a terminal near Hardisty, Alberta to Steele City, Nebraska, where it would connect to both a second pipeline that would carry crude to the coast of the Gulf of Mexico and to a third that would move oil to collection points in Illinois.

With a maximum carrying capacity of more than 800,000 barrels per day of crude oil extracted from Alberta’s tar sands – a process that has caused extensive destruction to Canada’s 1.3 billion acre, wildlife-rich boreal forests – and the Bakken basin of eastern Montana and western North Dakota, Keystone XL would cause an annual increase in carbon dioxide emissions to the atmosphere of 147 million to 168 million metric tons.

Greenhouse gas emissions resulting from the burning of tar sands oil, which is extracted from a highly toxic mix of bitumen, clay and sand, would be equivalent to the GHG emissions of 7.8 coal fired power plants, according to a State Department document explaining the Obama administration’s 2015 rejection of the pipeline permit application.

Keystone XL would also open up foreign markets to tar sands crude for the first time.

“Keystone actually is really driving an expansion of tar sands oil extraction,” Susan Casey-Lefkowitz, chief program officer at Natural Resources Defense Council, said. “You have to look not only at the emission of what goes through the pipeline, but also opening up a market that would not otherwise exist.”

Climatologist James Hansen, the former NASA scientist who first drew significant attention to anthropogenic climate change in the late 1980s, has warned of the consequences of encouraging combustion of the Alberta tar sands crude. He wrote in May 2012 that facilitation of its use by construction of the Keystone XL pipeline would mean “game over” for the planet’s equable climate:

“The concentration of carbon dioxide in the atmosphere has risen from 280 parts per million to 393 p.p.m. over the last 150 years. The tar sands contain enough carbon – 240 gigatons – to add 120 p.p.m. Tar shale, a close cousin of tar sands found mainly in the United States, contains at least an additional 300 gigatons of carbon. If we turn to these dirtiest fuels, instead of finding ways to phase out our addiction to fossil fuels, there is no hope of keeping carbon concentrations below 500 p.p.m. – a level that would, as Earth’s history shows, leave our children a climate system that is out of their control.”

In addition to the climate impacts of the project, then-secretary of state John F. Kerry also explained that the Obama administration had concluded that few jobs would be created by its construction or operation and that the project would not significantly lower the cost of fossil fuel energy.

Most legislators on Capitol Hill have favored the Keystone XL pipeline despite the climate and other environmental objections, including possible impacts on water supplies, that have been raised against it. The 114th Congress passed a bill that would have forced approval of the Keystone XL permit in Jan. 2015. Obama vetoed it the next month.

Earlier Congresses had considered measures aimed at speeding up consideration of the project.

Trump also issued another executive memorandum aimed at expediting consideration by the U.S. Army Corps of Engineers of an alternative route for the Dakota Access pipeline.

In that memorandum, Trump commanded the secretary of the Army to

“instruct the Assistant Secretary of the Army for Civil Works and the U.S. Army Corps of Engineers (USACE), including the Commanding General and Chief of Engineers, to take all actions necessary and appropriate to:

“(i) review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas under section 28 of the Mineral Leasing Act, as amended, 30 U.S.C. 185; permits or approvals under section 404 of the Clean Water Act, 33 U.S.C. 1344; permits or approvals under section 14 of the Rivers and Harbors Act, 33 U.S.C. 408; and such other Federal approvals as may be necessary;

“(ii) consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota), and whether to withdraw the Notice of Intent to Prepare an Environmental Impact Statement in Connection with Dakota Access, LLC’s Request for an Easement to Cross Lake Oahe, North Dakota, dated January 18, 2017, and published at 82 Fed. Reg. 5543;

“(iii) consider, to the extent permitted by law and as warranted, prior reviews and determinations, including the Environmental Assessment issued in July of 2016 for the DAPL, as satisfying all applicable requirements of the National Environmental Policy Act, as amended, 42 U.S.C. 4321 et seq., and any other provision of law that requires executive agency consultation or review (including the consultation or review required under section 7(a) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a));

“(iv) review and grant, to the extent permitted by law and as warranted, requests for waivers of notice periods arising from or related to USACE real estate policies and regulations; and

“(v) issue, to the extent permitted by law and as warranted, any approved easements or rights-of-way immediately after notice is provided to the Congress pursuant to section 28(w) of the Mineral Leasing Act, as amended, 30 U.S.C. 185(w).”

The President’s repeated use of the phrase “to the extent permitted by law and as warranted” indicates that the Army Corps of Engineers may retain its authority to complete the preparation of an environmental impact statement that examines alternative routes for the Dakota Access pipeline, as ordered by the Obama administration in Dec. 2016.

On the other hand, the language in Trump’s Dakota Access memorandum requires the Army Corps of Engineers to decide quickly whether to proceed with the EIS and grant the developer, Energy Transfer Partners L.P., permission required to build underneath Lake Oahe.

A Sept. 2016 opinion by a federal district judge may reinforce any determination by the  Trump administration to reverse a decision by the Obama administration three months later to proceed with an environmental impact statement. The Army Corps of Engineers said that it would complete the EIS on alternative routes because of the objections against the project lodged by native American nations in the Dakotas.

“Although we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Jo-Ellen Darcy, the then-assistant secretary of the Army for civil works, said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”

The Dakota Access project is considered by many native Americans to raise the risk that an oil spill would contaminate their water supply or flood tribal burial sites and other sites of cultural importance.

The September ruling by Judge James E. Boasberg  rejected arguments that the tribes had not been adequately consulted about the possible impacts on cultural resources during the permit review process, as required by the National Historic Preservation Act:

“[T]his Court does not lightly countenance any depredation of lands that hold significance to the Standing Rock Sioux. Aware of the indignities visited upon the Tribe over the last centuries, the Court scrutinizes the permitting process here with particular care. Having done so, the Court must nonetheless conclude that the Tribe has not demonstrated that an injunction is warranted here.”

Native American nations opposed to the Dakota Access did not argue that the Army Corps of Engineers had violated NEPA or any other applicable federal law in the extent of communication and discussion with them that had occurred or by initially proposing to apply a nationwide permit under the Clean Water Act to the project.

The Obama administration’s Dec. 2016 determination to undertake a full environmental impact analysis necessitated the denial of the permission to cross Lake Oahe needed by Energy Transfer Partners L.P., which is what likely drove Trump’s decision to ask the Army Corps of Engineers to reconsider whether to complete the EIS.

Planned to wind from its origin in North Dakota and through South Dakota and Iowa to an oil tank farm near Patoka, Illinois, Dakota Access would abut lands of the Cheyenne River Lakota Nation and the Standing Rock Indian Reservation.

dakota-access-pipeline-route-courtesy-wikimedia
This graphic shows the route of the proposed Dakota Access pipeline, which is complete except for the portion that crosses Lake Oahe in North Dakota. Image by NittyG (own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=52776844).

The developer’s proposal to bury the pipeline beneath the bed of Lake Oahe in North Dakota has raised fears of water pollution and other environmental damage from pipeline leaks and other mishaps.

Dakota Access would permit the consumption of at least 470,000 more barrels of crude per day.

Most, or even all, of the oil carried by the two pipelines could be exported. Congress enacted legislation in 2015 that ended a longstanding prohibition on transport of American crude overseas.

A spokesperson for Energy Transfer Partners L.P. refused to say, when asked by a reporter for The Intercept in Sept. 2016, that the company would remain committed to prior claims that all of the oil transported in it would be supplied to the U.S. market.

Environmental conservation community leaders vowed Tuesday to continue their opposition to both projects.

“The world’s climate scientists and its Nobel laureates explained over and over why it was unwise and immoral,” Bill McKibben, the founder of 350.org, said in a statement. “In one of his first actions as president, Donald Trump ignores all that in his eagerness to serve the oil industry. It’s a dark day for a reason, but we will continue to fight.”

Natural Resources Defense Council president Rhea Suh vowed an all-out battle, saying that the two pipelines “pose a grave threat to our water, communities, and climate.”

“We will use every tool available to help ensure that they are not built,” she said.

One legal academic who specializes in the application of federal environmental law said that he is not convinced that a court would defer to Trump’s executive orders.

“Some people think it’s a matter of snapping fingers, but the courts don’t work that way,” Professor Patrick Parenteau of Vermont Law School told Inside Climate News Tuesday, referring to the Dakota Access project. “There has to be a bona fide, legitimate reason why not proceeding with the assessment that just a month ago the United States government said in court was necessary in order to comply with the law. Why all of the sudden it is not?”

Trump’s precipitous actions on the fourth full day of his presidency overturns decisions taken after years of deliberation and study by his predecessor’s administration and follows a pattern of dishonest rhetoric about the validity of scientists’ understanding that fossil fuel consumption is driving climate change.

In Nov. 2012 businessman Trump labeled climate change a “Chinese hoax” aimed at destroying U.S. manufacturing capability. In Nov. 2016, the regime’s incoming White House chief of staff, lawyer Reinhold R. Priebus, publicly said that the 45th President regards climate change as a “bunch of bunk.”

NOTE: This post was updated on Jan. 25 to reflect that President Trump issued executive memoranda, not executive orders, and that the content of those memoranda allows some agency discretion in handling the pipeline projects.

.

COMMENTARY: Trump EPA transition team dominated by climate science deniers; nation and planet deserve better

When President-elect Donald J. Trump assumes office as the nation’s 45th chief executive in 15 days, he will gain the authority to determine, in large part, the extent to which the nation addresses the growing threat of anthropogenic climate change. His appointees to administer the nation’s Clean Air Act, the only U.S. statute available to force a reduction in greenhouse gas emissions, will be in a position to continue the country’s recent progress in transitioning away from a destructive dependence on coal, oil, and natural gas for energy.

Unfortunately, the personnel entrusted by Trump to manage the transition to a new administration at the U.S. Environmental Protection Agency have instead demonstrated an eagerness to deny scientific knowledge about the impacts of human fossil fuel use on the planet’s atmosphere and oceans.

The chairperson of Trump’s EPA transition team, Myron Ebell, personifies the ignorance and stubbornness of the men and women who have invaded EPA’s offices in an apparent quest to turn the country’s anti-pollution agency into a booster of the fossil fuel industries.

Ebell, 63 and lacking any education or experience as a scientist, is fanatical in his denial of climate science. He has accused climatologists of being a “gang” that has “cooked the data.” He has said that the principal conclusions of climate science, namely that the atmosphere of our planet is warming and the oceans are acidifying, are “myths.” He has called advocates for a shift to clean energy “the forces of darkness,” intent upon “turning off the lights” on the rest of humanity.

Nor does Ebell’s hostility to knowledge end with climate science. He thinks EPA is too hard on pesticides, too. Ebell apparently endorses the fringe view that those compounds pose no significant health risks to humans and that they help wildlife, Rachel Carson and Silent Spring notwithstanding.

But Ebell is not the only anti-science radical who is even now plotting how to turn EPA into a cheerleader for more carbon dioxide and methane pollution and more pesticide poisoning of animals and man.

Amy Oliver Cooke, for example, is a former talk-show host who has said that her goal is “irritating the extreme eco-left.” Cooke works for the right-wing Independence Institute in Colorado, where she constantly cozies up to right-wing extremists in the Colorado General Assembly. Her Twitter feed is full of paens to fossil fuels, linking their use with patriotism, and attacks windmills as unaesthetic and useless decorations.

She then goes even further in her slavish devotion to the energy sources that are methodically damaging the planet’s hospitability to life. Cooke labels herself an “energy feminist,” as if helping to lower humanity’s capacity to grow food, increase floods in some areas and drought in others, and decimate biodiversity is something that represents womanhood at its enlightened best.

Then there’s Harlan Watson, a long-time Republican Congressional staff member and favorite of Exxon-Mobil.

Watson, who holds a doctorate in physics and a masters degree in economics, apparently never let his considerable education get in the way of obstructing an effective national climate change agenda. In 2005, as a State Department official, he told representatives of the United Nations Framework Convention on Climate Change gathered in Montreal that the U.S. saw no reason to do anything about greenhouse gas emissions. That followed appearances at other international conferences aimed at building cooperation in the quest to reduce the warming pollution of carbon dioxide.

Watson last worked as an actual scientist in January 1980, according to his LinkedIn profile. At that time, the clear and present danger of climate change was not as evident as it is now, or even as it had become by the time he became deputy assistant secretary of interior in 1989. Watson has worked for a whole slew of Republicans, in fact, including F. James Sensenbrenner, Jr.

Sensenbrenner, the former Wisconsin representative, is known for his steadfast opposition to any international agreement to address climate change. A 2009 guide to Congressional staff quoted Watson as being in sync with Sensenbrenner’s stubborn refusal to address reality: it quoted Watson as saying that the Kyoto Agreement of 1998 was “a bad deal” for the United States. One must wonder whether Watson will broadcasting hostility toward the Paris Agreement to anyone in the new administration who will listen.

Next up is Christopher C. Horner, a lawyer with enough pretension to write not just one, but three, books that tell climate scientists they are all wrong. Those books, possibly facilitated with the help of the financial bounty showered on Horner by coal companies, have all been published by the conservative pillar Regnery. None acknowledge the cold – or should I say hot – reality of climate change: that humans are causing it, that it will severely impact our civilization, and that the extinction of all life on this planet is a possibility if we persist in our refusal to address it.

Horner seems to think it appropriate to use his education and license to practice law as tools to harass scientists, too. The eminent climatologist Michael Mann said in 2015 that Horner “has been instrumental in orchestrating the attacks on climate scientists over the past decade in the form of vexatious and frivolous [Freedom of Information Act] demands [and] efforts to force scientists to turn over all of their personal email.”

Just for good measure, Horner has also gone after Dr. James Hansen with a blizzard of unfounded slanders.

In 2009 he said on national television that Hansen “clearly abused his platform provided to him by the taxpayer, principally by the way he’s been exposed of manipulating and revising data with the strange coincidence of him always found on the side of exaggerating the warming.” Among the many other rhetorical broadsides he has aimed at honorable scientists, he has even accused Hansen of committing a crime: In 2011 he wrote that Hansen evaded his income tax obligations, a claim with no evidence at all to back it up.

Of course, not one word in any of those attacks on scientists is factually accurate.

Another extremist, anti-science “think tank” – the Heritage Foundation – is also represented among the Trumpsters that will soon take over EPA.

David W. Kreutzer wrote in a Sept. 2016 “backgrounder” co-authored with Kevin D. Dayaratna and Nicolas D. Loris that he thinks it’s time for the U.S. to “unleash” oil and gas production. That would seem to put him in tune with Mr. Trump’s oft-stated commitment to lessen or eliminate barriers to more fossil fuel activity in the United States.

Kreutzer is quite specific about how he would do that. He has said that Trump “should open all federal waters and federal lands that are not part of the national park system or congressionally designated areas to exploration and production for all of America’s natural resources.”

I added the emphasis in that statement because that one word – “all” – highlights the extremism in this opinion. Kreutzer seems to believe that even national monuments, marine preserves, and areas of the continental shelf that Presidents have withdrawn from energy exploration should be made available to the oil industry.

But that’s not all. Kreutzer also believes, if one takes his Sept. 2016 “backgrounder” seriously, that “Congress should require the Department of the Interior to conduct lease sales if a commercial interest exists.”

Again, I have added emphasis to the word “require.” If the Republican-dominated 115th Congress takes this advice, and Trump signs a bill that writes it into the U.S. code, we would see rigs along every part of the American coast, even in areas where it is aesthetically or biologically unsound to engage in drilling and even in areas where energy exploration would likely be catastrophically unsafe.

Oh, yes, there is at least one more example of Kreutzer’s over-the-top view about how to encourage even more fossil fuel production: He wants Washington to give states the authority to decide whether energy exploration can occur on federal lands within their borders. I’m sure that we’d see a whole lot of responsible consideration of environmental impacts in madly pro-fossil fuel states like Wyoming, North Dakota, and Alaska!

Just in case you have any doubt that Kreutzer is a climate science denier, note his comments in an interview with Steve Scully of C-SPAN last year. “Global warming is for real in that we’ve had global warming since the end of the last Ice Age,” Kreutzer said.

Now comes David Stevenson of the Caesar Rodney Institute. That’s an organization with clear and extensive financial ties to the fossil fuel-loving, climate science-denying, billionaire Koch brothers.

Stevenson has a bachelors degree in agricultural economics. This apparently qualifies him, at least in his own ideologue mind, to declare (as he did in Nov. 2015) that health-protective air quality regulations in Delaware are unnecessary and that the First State’s commitment to enforcing them makes it an “outlaw” agency.

George Sugiyama is another of Trump’s EPA minions.

A former chief counsel (and, therefore, close advisor) to Congress’ most infamous climate science denier, James M. Inhofe of Oklahoma, Sugiyama has also worked as a lobbyist for the National Mining Association.

Finally, there’s the college kid. Austin Lipari brings no apparent expertise in environmental law or policy, no obvious background in environmental health or toxicology, no known knowledge of climatology or any other scientific field that EPA considers as it applies the nation’s pollution laws.

Lipari does bring to the table membership in the Federalist Society, though. Apparently sympathy for a paranoid certainty that federal environmental laws are a threat to everyone’s freedom to get rich, a view trumpeted by that right-wing lawyer organization, is all it takes to be given a seat at the EPA destruction table.

I do not address here the awesome flaws of the man Trump has chosen to lead EPA – Oklahoma attorney general Scott Pruitt. Suffice to say, Pruitt shares the ignorant, selfish attitude aimed at further filling the coffers of oil and coal companies, their executives, and investors, and which will do great harm to the rest of the American people, that is exhibited by the band of radicals assigned to the agency transition team.

The American people did not vote for this hostile takeover of the environmental policy-setting arena. They did not choose climate science denial, hostility to the public health and economic benefits of clean air, clean water, safe pesticides, and non-toxic industrial sites. They did not say that the future of this planet’s biosphere, the prosperity of our civilization, and the relationships among nations should be handed over to a band of belligerent enemies of knowledge.

Unfortunately, and despite the fact that a man who received only 46 percent of the popular vote should seriously consider the views of those who oppose him, we appear headed for the most severe crisis in federal environmental policy since the era of environmental law began in the 1960s. What timing, too, as scientists have made clear that the world must force an enduring decline in fossil fuel emissions within just a few years if it is to avoid the truly horrific consequences that human-caused warming of the atmosphere and oceans will otherwise cause.