Southern Leg of Keystone XL Near Completion as Opponents Lose Last Legal Battle in Texas

By Carol Berry, Indian Country Today Media Network

American Indians and others who oppose the southern leg of the Keystone XL pipeline have lost their last legal battle, enabling TransCanada to finish the project by year’s end.

While the northern part of the Keystone XL pipeline has been held up by controversy, the protests against the southern portion, known as the Gulf Coast Pipeline, have been to no avail. On October 9 a split federal appeals court upheld a lower court’s refusal to stop the pipeline’s construction because an injunction to stop construction, which is what the opponents sought, “would cost [TransCanada] at least hundreds of thousands of dollars per day,” the U.S. Tenth Circuit Court of Appeals said in its ruling.

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TransCanada has already spent at least $500 million on the 485-mile pipeline, which is expected to transport 700,000 gallons of crude oil daily from Cushing, in central Oklahoma, to Gulf Coast refineries.

The controversial Keystone XL extends through Sac and Fox territory. Other Oklahoma tribes that have spoken out about the pipeline’s impact on tribal patrimony include the Caddo, Choctaw, Southern Ponca and Pawnee, though none is party to the lawsuit.

The southern XL extension was formerly part of the full TransCanada XL pipeline, traversing some 1,700 miles of western and Midwestern states in its transnational route from Canadian tar sands, but vigorous opposition from Indian people, especially in northern areas, has delayed approval of the full section. The northern part must be approved by the U.S. Department of State, because it crosses an international line between Canada and the United States. The southern leg, purely domestic, was able to go ahead, despite a lack of thorough environmental reviews.

The Sierra Club and other plaintiffs had sought an injunction against the U.S. Army Corps of Engineers, which had signed off on numerous permits so that TransCanada could move ahead. TransCanada proceeded even though the Corps had to issue 2,227 permits for water crossings, with minimal environmental review.

“Considering the number of permits issued by the Corps relative to the overall size of the Gulf Coast Pipeline, it is patently ludicrous for appellees to characterize the Corps’ involvement in the subject project as minimal, or to maintain that the Corps’ permitting involves only a ‘link’ in the Gulf Coast Pipeline,” said dissenting District Judge William Martinez in the October 9 Tenth Circuit ruling.

But the other two members of the three-justice panel in the federal appeals court, Circuit Judges Paul Kelly and Jerome Holmes, both said that financial harm can be weighed against environmental harm and in certain circumstances outweigh it.

The Sierra Club had alleged violations of the National Environmental Policy Act (NEPA), Clean Water Act and Administrative Procedures Act and contend that the pipeline constitutes a “major federal act” that requires NEPA analysis leading to a “hard look” at possible impacts.