Keystone XL Pipeline

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Original proposed pipeline route. Source: US State Department archives.

Why it matters

The Keystone XL pipeline is a proposed extension of the existing Keystone Pipeline System, which currently transports up to 600,000 barrels of oil per day between Canada and the U.S. The Keystone Pipeline System runs from the Western Canadian Sedimentary Basin in Alberta to refineries in Illinois and Texas, and also to oil tank farms and an oil pipeline distribution center in Cushing, Oklahoma. TransCanada is the sole owner of both the Keystone Pipeline System and Keystone XL. The Keystone XL pipeline would connect to the existing pipeline system to bring oil from Hardisty in Alberta, Canada directly to Steele City, Nebraska. The proposed 875 mile route of Keystone XL would cross the Missouri and Yellowstone Rivers.

Opponents of Keystone XL are concerned about the construction’s impact on wildlife. The pipeline’s route and associated power lines would span the majority of endangered whooping cranes’ southern migration route to Texas from Canada. It would also cross the remaining habitats of other threatened species such as piping plovers, sage grouse, and swift fox. The pipeline’s route crosses over 50 streams, increasing the risk that oil spills would affect pallid sturgeon habitats.

The Nebraska Public Service Commission’s decision to approve a new route for the Keystone XL pipeline is the latest turn in a decade old legal and regulatory battle over the controversial pipeline. The new route must undergo a federal agency environmental review before the pipeline can be constructed. This review opens the door to more challenges from local stakeholders, tribes, and environmental groups during the approval and permitting processes through the Army Corps of Engineers and Bureau of Land Management.

Current Status

The Keystone XL Pipeline has received all the necessary federal permits to complete the project. TransCanada, the sole owner of the pipeline, is currently challenging the Nebraska Public Service Commission’s alternative route approval. The Keystone Pipeline System is operating at 20% reduced pressure following a 210,000 gallon oil spill in November 2017.

On September 24, 2018, the State Department released the draft review of the new route for the pipeline approved last year by the Nebraska Public Service Commission. In the draft supplemental environmental impact statement, the department wrote that “there is potential for environmental impacts from the Proposed Action, should an accidental or otherwise unexpected release of crude oil from the Keystone XL pipeline or facilities occur,” but concluded that impacts would not be significant because a release is unlikely.

On November 8, 2018, the U.S. District Court for the District of Montana ordered the State Department to revisit key aspects of its NEPA analysis before pipeline construction can begin, including reassessing and further explaining its analysis of cumulative greenhouse gas emissions from both Keystone XL and the Alberta Clipper pipeline expansion. The judge also ordered the State Department to reassess the potential for oil spills, impacts to cultural resources and implications of current oil prices.

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History

TransCanada Corporation proposed the Keystone Pipeline System project on February 9, 2005.

On January 11, 2008, TransCanada Keystone Pipeline, LP (Keystone Pipeline System) received the final environmental impact statement from the United States Department of State regarding the Keystone Pipeline project and Cushing extension, stating the pipeline would result in limited adverse environmental impacts.

On March 14, 2008, the U.S. Department of State issued a presidential permit for the Keystone Pipeline System authorizing the construction, maintenance, and operation of facilities at the United States and Canada border to transport crude oil between the two countries. The permit followed the Department of State’s record of decision and national interest determination, which found that the issuance of the Presidential Permit for the Keystone Pipeline System would serve the national interest. TransCanada began construction of the pipeline system in three phases.

In July 2008, TransCanada and ConocoPhillips, then joint owners of the Keystone Pipeline System, proposed a major extension to the network, dubbed Keystone XL, to carry hundreds of thousands of barrels of oil sands bitumen from Alberta to Texas.

On January 28, 2009, the U.S. State Department opened public notice and comment period for Keystone XL. While the U.S. State Department conducted an environmental assessment, TransCanada began visiting landowners potentially affected by the pipeline. That summer, TransCanada announced it would buy ConocoPhillips’s stake in Keystone.

On February 19, 2010, the South Dakota Public Utilities Commission approved a permit for Keystone XL.

On March 18, 2010, Canada’s National Energy Board approved TransCanada’s application for Keystone XL with 22 conditions regarding safety, environmental protection, and landowner rights.

In April 2010, The U.S. State Department released a draft environmental impact statement that said Keystone XL would have a limited effect on the environment.

In June 2010, Phase I of the Keystone Pipeline System was completed. Phase I delivers oil from Hardisty, Alberta, over 2,147 miles to the junction at Steele City, Nebraska, and on to Wood River Refinery in Roxana, Illinois, and Patoka Oil Terminal Hub in Pakota, Illinois.

In July 2010, EPA said the State Department’s environmental impact statement on Keystone XL was inadequate and unduly narrow. This postponed the State Departments final decision. The State Department extended its review, saying federal agencies need more time to weigh in before a final environmental impact assessment could be released.

The Keystone-Cushing Extension, Phase II of the pipeline system, running from Steele City to storage and distribution facilities at Cushing, Oklahoma was completed in February, 2011.

On June 28, 2011, the Pipeline and Hazardous Materials Safety Administration issued its first corrective action order to TransCanada for Keystone Pipeline System leaks.

On August 26, 2011, the State Department releases its final environmental assessment, which reiterated that the pipeline would have a limited environmental impact.

On November 30, 2011, Republican lawmakers introduced legislation to force the Obama Administration to make a decision on Keystone XL within 60 days.

In January 2012, President Obama rejected the Keystone XL approval based on lack of adequate assessment of the pipeline’s impacts.

In March 2012, Obama endorsed the construction of the southern segment (Gulf Coast Extension or Phase III) that begins in Cushing, Oklahoma.

On May 4, 2012, TransCanada filed a new application with the State Department for the Keystone XL extension. TransCanada also chose to proceed with the southern portion of its Keystone expansion as a separate project, the Gulf Coast Extension.

In its supplemental environmental impact statement (SEIS) of Keystone XL released in March 2013, the U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs described changes to the original proposals including the shortening of the pipeline to 875 miles; its avoidance of “crossing the NDEQ-identified Sandhills Region” and “reduction of the length of pipeline crossing the Northern High Plains Aquifer system, which includes the Ogallala formation.” Following this assessment, the SEIS stated “there would be no significant impacts to most resources along the proposed Project route.”

On January 22, 2014, Phase III of the pipeline system, the Gulf Coast Extension, was completed and began pumping oil from Cushing, Oklahoma to refineries at Port Arthur, Texas.

A bill approving the construction of the Keystone XL Pipeline was passed by the Senate (62–36) on January 29, 2015, and by the House (270–152) on February 11, 2015. President Obama vetoed the bill on February 24, 2015, arguing that the decision of approval should rest with the Executive Branch. The Senate was unable to override the veto by a two-thirds majority, with a 62-37 vote.

TransCanada sued Nebraska landowners who refused permission allowing for pipeline easements on their properties, in order to exercise eminent domain over such use. However, on September 29, 2015, it dropped its lawsuits and acceded to the authority of the elected, five-member Nebraska Public Service Commission, which has the state constitutional authority to approve gas and oil pipelines.

On November 6, 2015, the Obama Administration officially rejected the Keystone XL Project, saying it did not serve the nation’s interest.

On April 9, 2016, the Pipeline and Hazardous Materials Safety Administration issued another corrective action order to TransCanada for Keystone Pipeline System leaks

Trump Era

On January 24, 2017, President Trump signed an executive order to expedite the approval of both the Keystone XL Pipeline and Dakota Access Pipeline.

Subsequently on March 24, 2017, Donald Trump signed a presidential permit to allow TransCanada to build the Keystone XL pipeline. In response, several environmental groups sued the Trump administration. The lawsuit challenged the U.S. Department of State’s and other agencies’  environmental review of the pipeline. The groups argued that the environmental review was inadequate under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) because it relied on a dated environmental impact statement from January 2014 and failed to consider key information on the project’s impacts.

On November 16, 2017, the Keystone Pipeline System leaked 210,000 gallons of oil in South Dakota as the result of construction damage.

On November 20, 2017, the Nebraska Public Service Commission approved (3-2) the construction of the pipeline, albeit through an alternative route (the Mainline Alternative Route [MAR]), which is longer, but was deemed to have the least environmental impact compared with two other routes that were considered (although this route was not considered in the 2011 environmental impact statement).

On November 28, 2017, the Pipeline and Hazardous Materials Safety Administration issued another corrective action order to TransCanada for Keystone Pipeline System leaks.

On December 19, 2017, the Nebraska Public Service Commission rejected TransCanada’s petition to use an alternative route closer to the original proposed route.

On January 18, 2018, TransCanada announced that it would be obtaining easements in advance of construction along the MAR.

On February 21, 2018, a US District Judge in Montana ordered the Trump Administration to release by March 21, 2018 the documents it used to make its Keystone XL decision, or explain why it would not.

In late March 2018, In a court declaration Jill Reilly, the Acting NEPA Coordinator of the U.S. Department of State’s Bureau of Oceans and International Environmental and Scientific Affairs, wrote that the Department is “reviewing the MAR in light of TransCanada’s announcement” that TransCanada is seeking MAR construction easements. The Department will hire a contractor to conduct the new environmental review.

On August 15, 2018, the US District Court for the District of Montana ruled that the supplemental EIS from 2014 needed to consider the pipeline’s approved route through Nebraska and the State Department is required to complete that analysis.

On September 10, 2018, the Rosebud Sioux Tribe and the Fort Belknap Indian Community filed a  lawsuit in the U.S. District Court for the District of Montana challenging the State Department’s decision to issue a cross-border permit for the Keystone XL pipeline. The filing alleges various violations of the Administrative Procedure Act, National Environmental Policy Act and National Historic Preservation Act during the permitting process.

On September 24, 2018, the State Department released the draft review of the new route for the pipeline approved last year by the Nebraska Public Service Commission. In the draft supplemental environmental impact statement, the department wrote that “there is potential for environmental impacts from the Proposed Action, should an accidental or otherwise unexpected release of crude oil from the Keystone XL pipeline or facilities occur,” but concluded that impacts would not be significant because a release is unlikely.

On November 8, 2018, the U.S. District Court for the District of Montana ordered the State Department to revisit key aspects of its NEPA analysis before pipeline construction can begin, including reassessing and further explaining its analysis of cumulative greenhouse gas emissions from both Keystone XL and the Alberta Clipper pipeline expansion. The judge also ordered the State Department to reassess the potential for oil spills, impacts to cultural resources and implications of current oil prices.


Thank you to Harvard Law student Leilani Doktor, JD 2019 for her assistance with this rule.

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