Illegal Alberta Clipper Expansion Scheme

Whether transported on the Enbridge Alberta Clipper, or on the TransCanada Keystone XL pipeline, extraction, refinement and transportation of tar sands oil has up to a 37% higher carbon footprint than regular oil. We are already experiencing climate change, and the time to transition to renewable forms of energy is now.

Background

In October, oral arguments were heard in federal court in Minneapolis over the illegal backroom deal conducted between the U.S. State Department and Canadian tar sands company Enbridge to nearly double the amount of oil flowing on its Alberta Clipper tar sands pipeline.

Because the Alberta Clipper crosses the U.S/Canada border, this expansion in volume is subject to the same federal review process as the controversial Keystone XL tar sands pipeline. But by connecting the Alberta Clipper to a newly installed pipe segment built in the right-of-way of an older, nearby pipeline at points just above and below the border, Enbridge has moved forward with the expansion and bypassed the legally required federal review of the project’s environmental and social impacts. It’s certainly not surprising that an oil company would try to skirt the process that has held up the Keystone XL for six years, but what is shocking is that the State Department has allowed it to do so.

Last year, conservation and tribal groups filed a lawsuit against the State Department, arguing that allowing this scheme to move forward is a clear violation of the laws designed to protect our environment. After this week’s hearing, it could be weeks or months before the court issues a decision on the legality of the State Department’s actions. But it’s clear that the Obama Administration already has all the information it needs to stop this dangerous project in its tracks.

  • The Alberta Clipper expansion represents a serious threat to land, water, and communities in the Midwest. Though it would not bring any meaningful benefit to the region, Alberta Clipper brings substantial risk to the residents and ecologically and culturally significant places along its route, which include three Native American reservations, as well as the Northern Divide, the Mississippi river, the Chippewa National Forest, and Leech Lake.Increasing the capacity of the pipeline would raise its pressure, causing more destruction in the case of a spill. As history has proven, when it comes to tar sands pipeline spills, it is not a question of ‘if’, but ‘when’.

    Enbridge has a particularly egregious track record of pipeline spills. From 1999 to 2010, Enbridge was responsible for more than 800 spills that released 6.8 million gallons of hydrocarbons into the environment. Enbridge is responsible for three of the fifteen largest onshore oil spills in U.S. history, including the 2010 Kalamazoo River disaster, the most expensive onshore tar sands oil spill in U.S. history. In July 2010, Enbridge’s Line 6B burst and spilled more than 800,000 gallons of tar sands oil into the Kalamazoo River.  The spill contaminated at least 35 miles of the river and demonstrated that tar sands spills pose unique risks to water resources. Five years and a billion dollars later, the area is still recovering from this disastrous spill.

  • Allowing this expansion to continue is a step in the wrong direction for the Obama Administration on climate. Studies have shown that tar sands crude is significantly more climate-polluting than conventional crude, and the tar sands industry is currently at a point where it requires substantial investment and additional pipelines in order to expand development. Allowing projects like the proposed Keystone XL and the Alberta Clipper expansion would effectively throw a lifeline to this toxic industry at a time when we should be focused on keeping dirty fossil fuels in the ground.
  • Unsurprisingly, there has been widespread opposition to this project in the Midwest. Even before this issue was on the national radar, advocates in Minnesota were fighting against the project tooth and nail at Minnesota Public Utilities Commission hearings across the state. Now that the decision has reached the State Department, people from across the Midwest have been making their voices heard in opposition to the Alberta Clipper expansion.They have collected petitions, visited their senators’ offices, and made thousands of calls into the White House. In June, over 5,000 people joined the Tar Sands Resistance March to protest the illegal expansion of Alberta Clipper and the growing network of pipelines flooding the Midwest in toxic tar sands. Then, just last month, over 100 young people from the Midwest traveled to Washington, DC, with more than 20 getting arrested at Secretary of State John Kerry’s front doorstep, to call on him to preserve his legacy as a climate champion by walking back Enbridge’s scheme.
  • Beyond the substantive issues with the Alberta Clipper expansion, this scandal reveals a startling lack of consistency within the Obama Administration. Both President Obama and Secretary Kerry have emphasized the importance of the federal review process with regard to the controversial proposed Keystone XL. “The process needs to be honored, not circumvented, and that means that there has to be the thorough sort of process of determination,” Secretary Kerry said of Keystone XL in January. “So we’re continuing to conduct the rigorous, and, I might add, transparent objective review.”  But the Administration has completely ignored this process for Alberta Clipper.

Put simply, the scheme to illegally expand the Alberta Clipper tar sands pipeline is a threat to communities and natural resources in the Midwest and to our climate, and makes a mockery of the laws that are meant to protect our communities and our environment. The Obama Administration should walk back this illegal scheme, and elected leaders at every level of government in the Midwest should be calling on them to do just that.

Lawsuit Plaintiffs and Details

In this lawsuit, the White Earth Nation, Honor the Earth, the Indigenous Environmental Network, the Minnesota Conservation Foundation, MN350, the Center for Biological Diversity, the Sierra Club and the National Wildlife Federation (“We”) are trying to address the problem of Enbridge’s diversion in Canada of tar sands oil from its Alberta Clipper line to a brand new border replacement segment of its older Line 3, and then back to the Clipper once inside the U.S.  The suit was brought against John Kerry in his role as Secretary of State, and against the State Department as a federal agency (the Defendants).  Enbridge petitioned the Court to be an Intervenor Defendant and was allowed to do so.

Four U.S. laws are important in the case:

  • NEPA – National Environmental Policy Act – sets up the Environmental Impact Statement

  • NHPA – National Historic Preservation Act – requires federal agencies to take into account the impact of projects on historic properties and to consult with concerned parties

  • APA – Administrative Procedure Act – allows actions of federal agencies to be reviewed, and possibly overturned or compelled, by the courts

  • FOIA – Freedom of Information Act – legislation that requires federal agencies to make a reasonable search for documents requested by the public

We stated three “Claims for Relief” when we brought the lawsuit. Only two will be discussed at these oral arguments. Both these two claims maintain that the State Department actions

- constitute a final action by a federal agency under the APA, and

- violated requirements of NEPA, NHPA and the APA and that as a result,

- the NEPA and NHPA review processes were triggered and have been unlawfully bypassed.

  • Claim 1 is that State Department actions allowing Enbridge to build the New Border Segment (of Line 3) and approving plans to “replace” old Line 3 (34”) with a larger capacity pipeline (36”) on a different route while leaving the old Line 3 pipe in the ground did this.

  • Claim 2 is that State Department actions allowing Enbridge to construct the Bypass Project to transfer oil from Line 67 to the New Border Segment (Line 3) then back to Line 67 once in the U.S. did this. We argue that under the existing Presidential Permit for Line 67 and the EIS that was done before the line’s construction, Line 67 is limited to a capacity of 450,000 bpd.  The Bypass Project allows it to carry 800,000 bpd above and below the border.  This capacity increase is exactly what’s being examined in the supplemental EIS process currently going on, so effectively Enbridge has short circuited that process and gotten what it wants through a backroom deal.

  • (Claim III is that the State Department violated FOIA by not producing documents we requested, not adhering to time limits, and not giving notice when required. There’s some progress on this and this will be decided later. )

We are asking that the State Department be found in violation of NEPA, NHPA and the APA, that the court issue an injunction prohibiting Enbridge from using the New Border Segment to increase capacity along Line 67 until the supplemental EIS process is complete, that the State Department’s approval of the Bypass Project and the New Pipeline/Line 3 Replacement be set aside and that we be awarded costs and fees.

The Defendant’s arguments will include:

  • APA law applies only to Federal agencies, not the President

  • The State Department is operating under President Bush’s Executive Order 13337

  • They didn’t actually authorize anything

  • Only the border section of Line 67 is in their jurisdiction.

There will be counter arguments and rebuttals as the details of these laws are discussed.

Explanation of terminology:

These are some terms that will be used at the hearing:

  • bpd – Barrels per day

  • Line 67 Expansion – Line 67 is the Alberta Clipper.  Enbridge requested an increase in capacity from the current 450,000 bpd (or 500,000, according to the State Dept.) to 800,000 bpd, the design capacity of the pipeline.  A supplemental environmental impact statement is needed for this increase, and that process is underway.

  • New Pipeline – The Line 3 replacement.  We argue that it is a new pipeline and not a replacement because the old Line 3 pipe will be left in the ground and could be used again in the future.  Also, it will follow a different route and will be 36” everywhere but the international border rather than the 34” of the old Line 3.  The State Department’s attorneys will probably call it the “so-called new pipeline.”

  • New Border Segment – The 16 mile section of Line 3 from the border to the first mainline valve in the U.S. which was recently replaced.  This segment is 34” in diameter.

  • Bypass Project – The construction and use of two pipes that connect Lines 67 and 3 above and below the Canadian border.

  • Executive Order 13337 – Order from the Bush Administration in 2004 delegating to the State Department Presidential authority over the permit process for facilities used for export or import of fuels at the U.S. border.

  • April 24, 2014 Letter – Letter from Statement Department to Enbridge concerning the New Border Segment and Line 3 Replacement.

  • July 24, 2014 Letter – Letter from the State Department to Enbridge concerning the Bypass Project.