There are ‘many’ Keystone-like pipelines, all enabled by the Army Corps

You probably know about the Keystone XL pipeline and the nasty stuff it contains, like tar, sulphur, arsenic, and mercury. You probably think that stopping Keystone XL from being built will stop the tar-sands pipeline problem in the U.S.

What you don’t know is that there are many “Keystone”–like pipelines, all carrying diluted tar under high heat and heavy pressure, all owned by foreign corporations, all waiting to burst in a neighborhood near you.

And all getting approved as fast as possible, thanks to those bad people at … the Army Corps of Engineers.


Yes, the Army Corps of Engineers, those saviors of your liberty, are monetizing the carbon assets of Canadian tar-sands companies as fast as it can. And you thought they worked for you. If there were ever any doubt which side of the People-vs-Money coin your government was on, this should erase it. The Corp of Engineers works for Money, especially Tar Sands Money.

Let that sink in. Not only is the Corp of Engineers in on the plot, they’re a prime enabler. Rick Perlstein, writing at The Nation, has the story (my emphasis and paragraphing throughout):

You know something about tar sands, those petroleum deposits sedimented within mineral layers, concentrated in the Canadian province of Alberta. They can be converted into crude oil via a highly disruptive refining process, then transported to market via a process that is even more disruptive: overland and underwater pipelines.

You know about tar sands, no doubt, because of the Keystone XL controversy. At Bioneers yesterday I attended a strategy session led by tar sands activists who were glad that the Keystone XL controversy has focused attention of the whole ghastly business; XL, because it crosses an international border, requires presidential action, which has provoked activists to launch a highly visible pressure campaign aimed at the White House.

But they were worried about that attention, too—because “XL” serves a distraction from other, more proximate pipeline crises unfolding now, today, perhaps beneath a waterway or across a county near you, that you might be able to help stop now, through grassroots action.

And it’s not just new pipeline construction. Older existing pipelines are being repurposed to hold the new high-pressure goo. Perlstein explains:

It’s not just the record number of pipelines that are being builtThere is also the newly flourishing and massively risky practice of reversing the directional flow of existing pipelines, often in conjunction with massive increases in pressure that the pipes were not designed to withstand (here’s a story about a pipeline reversal in which the volume will almost triple).

That was almost certainly a major reason for the disastrous rupture of ExxonMobil’s Pegasus pipeline last March in Mayflower, Arkansas, which you may have heard about—or which you may not have heard about, given that the Federal Aeronautics Administrationin a suspicious move made in cooperation with ExxonMobil, immediately banned flights above the spill from descending below a floor of 1,000 feet, while inquiring reporters on the ground were told by local sheriff’s deputies, “You have ten seconds to leave or you will be arrested.”

You might want to stop and absorb that. It’s a stomachful. Note the role of the FAA in covering up for ExxonMobil. Whose government, exactly? This under a “transformational” Democratic administration. Transformational for Obama, perhaps (do click; it’s an interesting connection). And of course, transformational for us, in an end-of-the-Holocene kind of way.

It’s not one long pipe, it’s hundreds and hundreds of short ones

But back to our story. How are these pipelines getting approved? Perlstein describes the method by focusing on one pipe-reversal project, called “Keystone Pipeline Gulf Coast Project,” owned by our friends at TransCanada. This is not Keystone XL.

Perstein again:

The clever lawyers for the pipeline company TransCanada, you see, had devised a shifty way to get pipelines reversed, built or both, before opposition can have time to gel. They get a special kind of expedited permit from the Army Corps [of Engineers] called “Nationwide Permit 12,” which is supposed to be limited to projects that disturb less than a half-acre of wetland in a “single and complete project.”

But companies claim, in clear violation of the intent of the Clean Water Act and the National Environmental Policy Act, that each crossing of a body of water (there are more than a thousand for the project in question, adding up to 130 acres of high-quality forested wetlands) is a “separate” project, each falling below the threshold of scrutiny.

That way they can avoid public hearings, avoid filing a environmental impact—can avoid any accountability at all, really.

They claim that each single pipeline is really hundreds of separate short projects. But that’s absurd, and as Perlstein points out, a clear violation of the law. Does the Army Corp of Engineers really issue these permits? They do, and gladly.

[W]hat the NWP 12 scam allows is for pipeline companies to overwhelm the system, as the legal complaint from the Sierra Club and Clean Energy Future Oklahoma explains, by “piecemealing” what is obviously a single project (even though you obviously can’t have a pipeline if it’s in pieces), “into several hundred 1/2-acre ‘projects’ so as to avoid the individual permit process.”

So it is that Army Corps of Engineers, the named defendant in the suit, gets to mete out little chunks of permission every eleven miles or so, in secret, the public and the planet be damned.

Our Carbon Betters, and the Army that works for them. The Corps of Engineers expedites these things as fast as it can. Perlstein’s story is about how the Corps was sued to try and stop these approvals, and about the fate of the suit (spoiler alert: your first guess is right). Not only did the suit fail, it failed for an amazing reason — I’ll leave you to read for yourself what that reason is.

Perstein tells a good story, weaves a nice tale, all in a well-sized piece of writing. You won’t be unhappy you read it. And if you’re Keystone-minded, this is essential stuff. We’re being Keystoned every day without the phrase “Keystone XL” ever coming up.

Your bottom line — Not only does your government not work for you (see the FAA bit at the top of this post), but the Army brass — those wonderful people who parachuted troops onto all those Veterans Day gridirons — doesn’t work for you either. They work for ExxonMobil, TransCanada, Enbridge (another Canadian tar company), and their own post-“retirement” cashout careers with Gruman, Lockheed and the like. Money for them; toxic spills for you.

Keep that in mind the next time they want you to salute the military, our wars, or the military budget. You’re saluting your tax dollars at work, to someone else’s benefit.


To follow or send links: @Gaius_Publius

Gaius Publius is a professional writer living on the West Coast of the United States.

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36 Responses to “There are ‘many’ Keystone-like pipelines, all enabled by the Army Corps”

  1. Bruce says:

    The USACE’s have been ROTTEN To the Corps for at least 40 years, now (see “Paving Paradise”/Pittman); but the solution to their dereliction epitomized above (as well as ANY water pollution) remains EFFECTING the Clean Water Act (CWA) 1985 DEADLINE, NOW (even Over A QUARTER CENTURY LATE):

    (33 U.S.C. 1251 et seq.)
    AN ACT To provide for water pollution control activities in the Public Health Service of the Federal Security Agency and in the Federal Works Agency, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
    SEC. 101. (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act— (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.

  2. jea says:

    The end of me? LOL. You’re adorable. In other words, let me translate for you. You either didn’t read the opinion or you’ve read it, realized that I was right and you’re too full of hubris to acknowledge you were wrong. I understand completely. I never asked anyone to believe anything. I simply posted what I knew. You asked for the sources and I provided them:

    Kevin: Telling us his research is flawed and proving it are two different animals.
    Kevin: Again, just stating your opinion does not suffice.
    Kevin: You provide no links or citations. Why should anyone believe you?
    Kevin: It is common knowledge of the literate that the one who makes the claim is also the one who must back it with supporting evidence.

    And without knowing what you were talking about you posted this little gem:
    Kevin: As per the evidence presented in the article, your interpretation of the law is absurd.

    You simply uncritically relied on the article I was refuting. So, let’s recap. I post something (not to you by the way) refuting an article posted by the OP.I never asked anyone to take my word for anything like you claim. I posted it. You and anyone else were perfectly capable of finding out this information for yourself. It is public knowledge. But, instead of doing that you immediately jump on the thread and posted what I’ve quoted above, which includes an accusation that my interpretation of the law is absurd.

    Well, as I’ve now demonstrated, my interpretation wasn’t absurd. It is, in fact, the law. The facts I presented are accurate too and you can see that for yourself if you just read the opinion. Now that you’ve been proven wrong you want it all just to go away. Everyone has moved on (as if you speak for everyone – I guess when you’re wrong you want as much company as possible. I don’t behave like that but that’s your choice. When I’m wrong I simply admit it and move on.) Now that you’ve been proven wrong, it’s a waste of your time. Well, it wasn’t a waste of your time to jump all over my post when you thought you were right was it? But, you’re probably wise to move on. You really can’t be anymore wrong than you’ve already been.

    I’m sure you consider this entire thread a “waste of time” and that’s too bad. You could have actually learned something from this exercise but, instead, you’ve characterized it as a waste of time. One man’s learning experience is another man’s waste of time I suppose. By the way, why would I give up? I was correct. You’re the one who is giving up (because it’s a waste of your time remember?)

    You criticize me, call my interpretations absurd, challenge me, ask for sources and proof and when I oblige, you claim I’m wasting your time, call me arrogant, claim this arrogance will be the end of me and then take your ball and go home. Talk about arrogance!

  3. Kevin Schmidt says:

    If you remember, you wanted people to believe your opinion without the need to cite your sources. That is how this all began. Now you won’t give it up. Your arrogance will be the end of you.

    Everyone else has moved on from this link. I suggest you do the same and not waste any more of my time or yours.

  4. jea says:

    So, Kevin, what say you now? The plaintiffs have decided not to appeal Judge Jackson’s denial of their Motion for the Preliminary Injunction. Next, they will lost on both Motions to Dismiss and Motions for Summary Judgment, for the very same reasons I’ve already provided. They are wrong on the facts and the law.

    How about you? Have you had a chance to read the decision? Still waiting for you to respond.

  5. jea says:

    Still waiting to hear your response to the 60 page opinion in the Enbridge case. As the decision of the court now makes clear, my interpretation of the law right on point. I know you had no reason to believe me and I am truly sorry I must remain anonymous at this point in time, but now you have no reason to doubt me. You can read the adjudicated facts and the best single judical opinion on the law to date at the link I provided. Now, you don’t have to rely on my interpretation. You have the actual decision of the court to look to, which just so happens to be exactly the interpretation I provided in this thread.

  6. jea says:

    Done. I’ve now provided you with a source, the most comprehensive judicial opinion on the subject to date. Everything I wrote in my posts above is cooroborated in this opinion. If you choose to read it, you can see for yourself. I’ll anxiously await your comments after you’ve read Judge Jackson’s opinion. So, supporting evidence has now been provided. It’s up to you whether you choose to read it.

  7. Kevin Schmidt says:

    It is common knowledge of the literate that the one who makes the claim is also the one who must back it with supporting evidence.

  8. Moderator3 says:

    It is possible to disagree without personal attacks. Further personal attacks will be removed.

  9. jea says:

    Now, I’ve posted a link to the judge’s opinion. It was never MY opinion, as I said from the beginning but somehow you are having trouble with reading comprehension. That or you are just obstinate and don’t like the outcome. Either way, I’ve provided a link to the definitive decision to date on these issues. It’s 60 pages and I’m not sure how well you’ll do reading it. You’re having trouble with the few paragraphs I’ve written so 60 pages may be asking a bit much of you. If you’re not an attorney, then that will make it all the more difficult for you to follow along, but feel free to ask me if you have any questions. I’m always happy to assist. I’ll post the link here too in case you don’t see the link I posted below.

  10. jea says:

    You must be reading impaired. I already explained why I can’t disclose what I know. I’m not asking you to believe me. Frankly, I could care less whether you do or not. But, I have provided you with a way to verify what I’ve said by pointing you to a 60 page opinion that sets forth the applicable law, regulations and confirms the interpretation of the law and the factual background of the case. If you’re too lazy to look for the opinion, despite me providing you with the Judge’s name and court where she practices, that’s not my problem. But, because I’m interested in people knowing the facts and the law, I will provide you (and everyone else) a link to the opinion. It’s 60 pages, as I mentioned, and it sets forth a detailed factual history of the case, the applicable law, the various misrepresentations and overstatements by the plaintiffs, and an exhaustive analysis of plaintiffs NEPA, CWA, and ESA and other claims. One of the plaintiffs claims (about enviromental review for the easements was adjudicated not ripe for review). So, now you have a citation, a source and the best opinion to date on this topic. Feel free to ask if you have any questions about the decision.

  11. Kevin Schmidt says:

    Again, just stating your opinion does not suffice.

  12. Kevin Schmidt says:

    You provide no links or citations. Why should anyone believe you?

  13. jomicur says:


  14. jea says:

    Your article, as I mentioned above, is outdated. The judge ruled against the plaintiffs on their Motion for Preliminary Injunction. Take a look at it if you want. You’ll see that my interpretation is consistent with the judge’s decision in that case. The article isn’t “evidence” Mr. Schmidt. It’s a journalists interpretation of the facts and the law and I can assure you that he did not get the entire story because most federal agencies do not comment on pending litigation. So, what the author got was a lot of information from the plaintiffs and much of that information is erroneous and the judge agreed that it was. The Enbridge case was decided by Judge Jackson in the D.C. Circuit. The opinion is available. It’s 60 pages. I’ve read it. Have you? I suspect not.

  15. jea says:

    By the way, Kevin, the Enbridge article you linked to if from July. The judge in that case issued a 60 page decision denying the plaintiffs’ Motion for a Preliminary Injunction. That article is also fraught with factual and legal errors as well. As almost no Federal Agencies comment on pending litigation, these stories tend to parrot the information provided by the plaintiffs’ attorneys and are usually very balanced. I’ll be glad to tell you everything I know once the case is over. I just can’t right now.

  16. jea says:

    I’ve explained how the law and regulations work. I’ve explained how the NWP process works, specifically how the environmental compliance is done at the issuance of the NWP (once every 5 years) not at the time a company sends in a pre-construction notice. I’ve explained how with a NWP the Corps does not issue an individual permit but, rather, if the PCN complies with the NWP 12, then the Corps issues a verification letter. That is all that is required.

    I’ve noted that the NW12 treats individual crossings as individual projects (when the project is “linear”) and that the public had an opportunity to challenge any or all of the NWPs long before they were finalized. This is all verifiable so knock yourself out.

    I am involved in one of the lawsuits so I can’t say more at this point. I won’t tell you which case I’m involved in (and there are many ongoing cases involving more than one company) but once the litigation I am involved in is over, I will be happy to be more specific. I’ll even share the judge’s decision with you (it’s available to read now but it’s subject to an interlocutory appeal so I won’t tell you anymore than I already have).

    I can tell you that I’ve yet to see an factually or legally accurate article on this topic from liberal or conservative bloggers. So, believe what you want but I’m telling you that Gaius’ article and the one it was based upon are inaccurate in many respects, both factually and legally.

    Note, also, that I am vehemently against these pipelines so I have no axe to grind. The industry is under regulated and the solution isn’t for other agencies to operate outside their legislative authority. The solution is for citizens to pressure Congress to regulate the industry. I am not optimistic that this will happen.

  17. Kevin Schmidt says:

    Yes, your trained helplessness is an absurdity. But claiming you are a better citizen than me for exposing your trained helplessness absurdity is an even greater absurdity.

  18. jomicur says:

    The man who hopes absurdly, it appears, is in some fantastic and gaseous manner a better citizen than the man who detects and exposes the truth. Bear this sweet democratic axiom clearly in mind. It is, fundamentally, what is wrong with the United States. —Mencken, Notes On Democracy

  19. Kevin Schmidt says:

    Telling us his research is flawed and proving it are two different animals.

  20. Kevin Schmidt says:

    Thanks for the trained helplessness. You would make a lousy coach or inspirational speaker. In your world, when the going gets tough, quit, then go home and watch TV.

  21. Kevin Schmidt says:

    As per the evidence presented in the article, your interpretation of the law is absurd.

  22. Hue-Man says:

    Today’s headline in The Globe & Mail (Toronto): “Canada dead last in ranking for environmental protection”

  23. Hue-Man says:

    B.C. has few treaties with First Nations and much of the proposed Northern Gateway route is subject to land claims. Supreme Court rulings have held that tribes/bands have legal ownership but that has not been defined nor the extent of the claims.

    Environmental concerns are the steep terrain, the number of river and stream crossings, earthquakes, landslides, avalanches, flooding, and everything else that can go wrong in a remote wilderness area. Add to that shipping of crude oil in the stormy North Pacific, avoiding numerous islands before you reach open ocean.

    Second proposal – reverse an existing pipeline and extend it to New Brunswick for refining in Montreal and N.B. and export to international markets. Hearings underway.

    Third proposal – twin the existing oil pipeline from Alberta to Vancouver for shipping to Asia. Hearings underway.

    Fourth proposal – when Churchill, Manitoba, is ice-free for more of the year, export to Asia through the newly open Arctic Ocean!

    Continuing – “if you don’t give us our pipelines, we’ll keep shipping it by rail” (see Lac Mégantic, QC. The oil in the tankers that caused the conflagration and the loss of 47 lives was from North Dakota – Bakken Formation).

  24. Bill_Perdue says:

    Replying to GPs earlier post Transformational for Obama, I commented that “Obama is the worst conservative president since Reagan. He’s passed the obscene records of the Clinton and Bush administrations.”

    Both parties in Congress and the Obama WH are equally intent on the further degradation of the environment and the protecting the criminality by energy companies at the expense of working people and consumers.

    Unsafe practices by energy companies have two effects. They kill murder workers in non-accidents like the one in the BP/Gulf oil rig explosion on April 20, 2010 that killed eleven workers and injured 16 others. There are no federal prosecutions for manslaughter aimed at the owners of BP. Train wrecks involving hazmat materials and petroleum products regularly take a toll of workers or civilians, like the terrible explosions of crude oil tankcars the destroyed the center of Lac-Mégantic, Quebec that killed 13. Mine explosions like the one Upper Big Branch Mine disaster on April 5, 2010 killed 29 of the 31 miners on duty. A state investigation found Massey energy, mine owners and Obama’s Mine Safety and Health Review Commission directly responsible for the blast. There are, naturally, no federal prosecutions by the Obama regime for manslaughter aimed at the owners of BP or Massey Energy.

    The Obama regime, the courts and Congress, Democrats and Republicans, equally play the role of political prostitutes when it comes to energy polluters. Because the Democrats control the WH and half of Congress they get most of the blame and since they controlled the whole Congress when BP’s oil rig and the Massey owned mine exploded they get all the blame for pouring salt on the wounds of those effected by those disasters, They did nothing to prosecute the owners for murder or manslaughter.

    For now the main victims of the unregulated greed of American and Canadian energy companies are workers but the number of civilian victims is rising and will soon exceed that. And as Keystone like operations and Fukashima like incidents continue we’ll all become victims. Whatever else you do this week watch The Road,

    British environmental campaigner George Monbiot said that “It could be the most important environmental book ever” “A few weeks ago I read what I believe is the most important environmental book ever written. It is not Silent Spring, Small Is Beautiful or even Walden. It contains no graphs, no tables, no facts, figures, warnings, predictions or even arguments. Nor does it carry a single dreary sentence, which, sadly, distinguishes it from most environmental literature. It is a novel, first published a year ago, and it will change the way you see the world.”

    Then go organize a demonstration. And then another one, and another one, etc.

    Another excellent post GP, thanks.

  25. Badgerite says:

    Thanks for the answer. I had been wondering. I know the Canadian Rockies are in between, but there is a lot of money involved and technical difficulties usually do not serve to block these interests. Thanks for the information.

  26. jea says:

    The Corps isn’t “doing the bidding of the oil industry”. They are following the law and the regulations (in this case, the Nationwide Permits that are issued every 5 years). The Corps of Engineers has limited jurisdiction under Section 404 of the Clean Water Act (and in some cases, Section 10 of the Rivers and Harbors Act). They issue permits for the placement of dredge or fill material into Waters of the United States. Permits can be individual (the applicant applies and goes through a lenghty review under various laws and regulations (including NEPA, CEQ, ESA, and many other laws and regulations), puts out the application, draft NEPA documentation and more for public review and comment. Applicants must avoid, minimize and mitigate for impacts (temporary or permanent) to waters of the United States, including wetlands (that can be done with on site mitigation, inl lieu fee mitigaiton, purchasing mitigation credits at mitigation banks, etc. and usually at much higher acreage ratios than the waters impacted). Virtually every individual permit contains numerous general and special conditions that the applicant must adhere to.

    The Nationwide Permit Process covers categories of very common activities that have small impacts on waters of the united states (generally 1/2 acre of less). The NWPs are issued every five years after extensive notice and comment proceedings, publishing them in the Federal Register, and giving state and federal agencies, the public and any other interested party the opportunity to ask questions, comment, and even judicially challenge the issuance of the NWPs. With a NWP, the company proposing to use one of the “already issued permits” must, in some cases, provide the Corps with a PCN (pre-construction notification) indicating that they will be invoking the “already existing permit”. The Corps verifies the project details, the proposed route, how the company intends to avoid, minimize and mitigate for any impacts (temporary of permanent) to waters of the United States, and if the company meets the requirements of the NWP they are issued a “verification letter”, not a permit – the permit has already been issued for a period of five years. With many of the MWPs companies don’t even need to send the Corps a PCN. It isn’t required. When NW 12 was promulgated, that was the time when all the environmental compliance was done under NEPA, CWA, R&H Act, ESA, CEQ Regs, public interest review, etc. In the text of NWP 12 and the Federal Register notice that accompanied it, it was made extremely clear that for linear projects (such as pipeline, utility lines, etc) that each water crossing is treated as a single and distinct project. There was no hiding of the ball, no doing the bidding of the oil companies, or any other conspiracy or shell game. So, not only did the company and the Corps follow the letter of the law, they followed the spirit of the law as well. To suggest otherwise demonstrates a fundamental misunderstanding of the statutory and regulatory framework that is in place.

    So, your accusation that the Corps is “doing the bidding of the oil companies” is simply false. They are following the law and regulations that were in place long before Keystone or Enbridge ever sent in PCN seeking verification letters.

    The solution lies in Congress. For domestic pipelines, no pipeline permit is required! The Corps can’t simply expand their jurisdiction because Congress decided not to regulate the industry. That would be illegal. The only additional requirement with pipelines that cross international borders is the requirement to get a presidential “permit” (permission). Obama is likely to issue it and, again, he is the one to answer for it, not the Corps or any other Federal Agency. That’s just the way it is.

  27. jea says:

    I will do that. I happen to practice law in this area and I can tell you that his research is flawed. When some of these cases are final (decided, appealed, tried, etc.) I will post quite a bit more.

  28. lynchie says:

    Canadians blocked the attempt to build to the west coast or east to Sault St. Marie at the head of the Great Lakes.
    Too much money flowing to our empty pocketed congress. They don’t live anywhere near where the pipeline is going to be built. That is for us ordinary assholes to live with. Besides Congress doesn’t believe in science so any negatives are simply dismissed.

  29. GaiusPublius says:

    Your argument is with Rick Perstein. He writes at The Nation and you can reach him there. He’s a pretty good (OK, very good) researcher. Write to him with this argument and see what he says. If you do, I’d really like you to report back with his answer. It would help us all.



  30. Naja pallida says:

    Of course the ultimate fault lies with Congress, in all instances I mentioned, but they’re so bought by special interests that they don’t know their ass from a hole in the ground. There is no reason why the Corps of Engineers should be doing the bidding of the oil industry anyway.

  31. GaiusPublius says:

    Good question, and there’s an answer.

    (1) To get the oil to China and other Asian countries, it has to go refineries at a port that can handle a super-tanker. That means BC or the Gulf. BC hates the stuff, and is blocking pipelines through the province. That’s still up in the air, since IIRC the Canadian government has final say.

    (2) Us carbon billionaires have a financial interest in the various aspects of tar-sands delivery as well. Kochs own pipelines and refineries in this country, etc. There’s more.

    (3) Despite what you read, the US gov’t is in bed with carbon big time. They’re eager to “help.”

    Thanks for asking, Badgerite. It really was a good question.


  32. jomicur says:

    I’ve been saying since the whole Keystone flap erupted that, ultimately, it will make no difference. Assuming the citizens of this country manage to prevent Keystone from being built, the oil interests will find another way to get what they want. They’ll simply get another pipeline built, possibly (or probably) by gaming the system, or they’ll build a series of smaller, shorter pipelines then hook them up, or whatever. What is smilingly called American democracy is a farce, a smoke screen set up to mask the fact that in reality this country is ruled by autocrats who will get what they want by hook or by crook–quite literally, in many cases. They are as firmly entrenched as the “nobles” who ruled nations in the Middle Ages; they own the country, they fully understand their privileges, and they will not be denied.

  33. jea says:

    Placing the blame on the Corps of Engineers is absurd. This story, like so many covering the issue, is fraught with legal and factual errors. See my post below as I provide a short explanation of how this process actually works. The fault lies with Congress. The pipeline industry is just not well-regulated and that is Congress’ fault, not the Corps of Engineers of any other federal agency.

  34. jea says:

    Very little about this story is accurate. Let me explain.

    National Environmental Policy Act (NEPA) compliance occurs when the Nationwide Permits are first issued (which happens every 5 years). The public, federal and state agencies and anyone else can challenge the issuance of the NW Permits. There is a notice and comment proceeding and the draft NW Permits are published in the Federal Register.

    The NW 12 itself states, both in the permit itself and the regulatory history from the Federal Register) that each water/wetland crossing is to be treated as a single and distinct project (with respect to linear projects like pipelines). There is no plot. There is no conspiracy. This is an industry that is simply underregulated.

    There is no “pipeline permit” required for domestic oil pipelines. For pipelines that cross international borders, a type of “presidential” permit is required. All the Corps of Engineers has jurisdiction over is the placement of dredge or fill material into Waters of the United States, which includes wetlands.

    In another even more recent pipeline case, (a 600 mile domestic pipeline) the total federal (Corps, DOI, PHMSA, EPA, BIA, FWS) involvement was less than 1.8% of the total length of the pipeline. What is required is a preconstruction notice (PCN) from the pipeline company to the Corps, a verification letter from the Corps that the company’s proposed crossings comply with NW Permit 12, and proposed mitigation for the temporary and/or permanent impacts to Waters of the United States.

    There is also the Endangered Species Act (ESA) compliance required of the pipeline company, but it’s the company that decides whether to proceed under Section 7 or Section 10 of the ESA. The Pipeline and Hazardous Materials Safety Administration (PHMSA), a division of the Department of Transportation, must review and approve spill response plans submitted by the pipeline company before the company can handle, store, or transport oil in the pipeline.

    Moreover, to characterize the pipeline as “piecemealed” is simply inaccurate. The pipeline companies submitted their entire pipeline plans at the beginning of the process, including proposed routes, number of crossings, directional drilling efforts to avoid Waters of the United States, needed easements on Corps and Bureau of Indian Affairs land, mitigation, and more.

    “Piecemealing” is a legal term of art which involved not disclosing the entire project from the outset and coming back to the permitting or other regulatory agencies and adding pieces to the project little by little. That simply didn’t happen here. The pipeline companies disclosed their entire projects from the outset. To characterize the verification of NW 12 Permits as piecemealing demonstrates a fundamental misunderstanding of the laws and regulations.

    The Corps of Engineers doesn’t issue “pipeline permits”. They issue permits for the placement of dredge or fill material into waters of the US, including wetlands. NWPs cover entire classes of activities (unlike individual permits which require a much more involved regulatory process) and the NEPA compliance is done at the outset when the NW Permits are issued (every 5 years). Environmental groups must challenged the NW Permits at the issuance stage, not after they have been issued and subject to notice and comment proceedings and finally issued.

    I am all for trying to keep tar sands pipelines out of the US, but the solution is to get Congress to regulate the pipeline industry, not to saddle the Corps of Engineers and other agencies with responsibilities that are outside of their statutory jurisdiction.

    The reporting on this issue has been atrocious and inaccurate. It would be refreshing to see some liberal bloggers actually get this story right and put the blame where it belongs, on Congress, not on agencies whose involvement in essentially private pipeline company projects is quite small. These pipeline companies met the requirements for NW12 permits and received verification letters from the Corps. Many of the NW Permits don’t even require pre-construction notification to the Corps.

    So, perhaps you could do a bit of research, consult an attorney, or take your blinders off and get the facts straight before publishing a story fraught with factual and legal errors. As I mentioned previously, I am 100% against tar sands pipelines, but the solution is with Congress.

  35. Badgerite says:

    Why does it necessarily involve the US. They are Canadian tar sands. Can they build a pipeline to their coasts or are there mountains in such in the way that would make that impractical?

  36. Naja pallida says:

    I’ve maintained since the Keystone arguments started to be made that they would find a way to get that oil to market, with or without the Keystone XL. Whether it’s skirting the law to build new pipeline, or making existing pipeline capable of carrying tar sands oil… there is no one in elected government who has a vested interest in stopping it from happening. There are many already existing oil pipelines all across the US, the law for those leases most likely doesn’t make any distinction for carrying tar sands oil.

    Sure seems like the DoD has been subverted to get around the legislative branch and any measure of oversight though, doesn’t it? Can’t spy domestically adequately with the CIA? Let the NSA do it. Your indiscriminate drone program getting some heat? Give it to the Air Force. Can’t build Keystone XL without protests? Let the Army Corps of Engineers do it behind their backs.

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