The import into the United States of petroleum products derived from oil sands requires a pipeline to transport the product from Alberta to the end user in the U.S. An oil sands pipeline must, by definition, cross the U.S. – Canadian border, and under U.S. law, must obtain a “Presidential Permit” from the Department of State (see Executive Order 13,337, 69 Fed. Reg. 25,299 (April 30, 2004) and related orders). The Department must determine whether the project is in the national interest and prepare an environmental impact statement (“EIS”) (required by the National Environmental Policy Act or “NEPA”). The State Department has issued Presidential Permits for the Keystone pipeline (in 2008) and the Alberta Clipper pipeline (in 2009) despite strong opposition (including federal and state lawsuits) from U.S. environmental groups. The Department is now in the midst of the permitting process for the Keystone XL pipeline, which is being opposed not only by environmental groups, but also by at least fifty Democratic members of the House of Representatives (Letter from Democratic Representatives to the Secretary of State (June 30, 2010)).
On July 16th, the Environmental Protection Agency (“EPA”) weighed in, claiming that the information contained in the Keystone XL draft EIS was inadequate because it:
(a) did not consider the impacts from the fuel economy standard rule and of more fuel efficient technologies;
(b) did not estimate both the GHG emissions from the extraction from oil sands and the GHG emissions and local air quality impacts at refineries (thus including actions occurring outside the U.S. in the case of extraction of oil sands and by entities not within the control of the pipeline company);
(c) did not use historic pipeline spill data to estimate the potential “number” of spills and the degree of harm and did not consider mitigation measures to reduce the potential for and impact of a spill, particularly for spills in “high consequence areas;” and
(d) did not evaluate the potential for disproportionately high and adverse human health and environmental effects on minority, low-income, and Tribal populations, particularly for such populations near the Port Arthur, Texas refineries (i.e., Environmental Justice concerns). See Letter from EPA to the Department of State (July 16, 2010).
This position took many interested parties by surprise, given the federal government’s prior approval of the Keystone and Alberta Clipper pipeline Presidential Permits and the fact that many of the EPA comments concerning the inadequacy of the Keystone XL draft EIS are similar to the environmental group claims concerning the adequacy of the Alberta Clipper EIS that were recently rejected by the U.S. District Court for Northern California (available at http://www.sierraclub.org/environmentallaw/tarsands/pipeline-alberta-clipper/state-dept-permit-challenge/Memo%20Opinion%20and%20Order%2010-2-3.pdf). Also, see environmental group comments on the Keystone XL project that are very similar to the EPA comments.
At a minimum, EPA’s comments on the draft EIS are likely to delay issuance of the Presidential Permit (probably causing a substantial delay in project completion) and require the White House to resolve conflicting comments among the involved federal agencies and between EPA’s proposed approach and prior administrative precedent concerning other oil sands pipeline EISs. The White House (or if necessary the courts) will also need to reconcile the broader legal issues (e.g., whether it is appropriate to mandate inclusion in an EIS of consideration of effects that occur outside U.S. territory and would occur whether this pipeline goes forward or not (since it is widely reported that the extraction will occur and be shipped to markets in China or India if not to the U.S.)).
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