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A Prudent Action on the Keystone XL Tar Sands Pipeline: Waiting for a legal pipeline route through Nebraska

Danielle Droitsch

Posted April 18, 2014

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The U.S. State Department has decided to extend the comment period  for the federal agencies who are weighing in on the proposed Keystone XL tar sands pipeline.  In their announcement, the State Department cited the fact there is no legal route through the state of Nebraska and there won’t likely be one for at least another 6 months to a year or more. The State Department also said they were still culling through over 2.5 million comments from the public which overwhelmingly cite the serious risks posed by the pipeline to land, water, climate, and public health.  Unsurprisingly, pro-pipeline advocates have called this decision politically expedient.  But in fact this decision is entirely consistent with the Administration’s efforts to ensure there is a good public process to confirm a safe proposed route for the pipeline.    

At the heart of the administration’s announcement is a recognition of the right of a state to set its own pipeline route.  President Obama has been clear in his support for the people of Nebraska:

"I don't think folks in Nebraska are going to say to themselves 'we'll take a few thousand jobs if it means that our kids are drinking water that can damage their health, or if rich land that is so important to agriculture in Nebraska ends up adversely affected.' That's how I'll be measuring these recommendations when they come to me." President Obama, November 2011

A recent court decision make Nebraska route illegal

In February, a Nebraska state court declared that the process for establishing a route through Nebraska for the pipeline was illegal.  The decision has been appealed and the Nebraska Supreme Court will hear the case again this fall. Until at least that time (possibly much longer) there is no approved route in Nebraska.  Without an approved route, the State Department is unable to evaluate the impacts of the pipeline particularly with respect to potential water contamination or threats to public health in the event of a spill.

The State Department rightly recognized that it would be improper to render any decision on the pipeline until there was a clear and defined route in Nebraska.  And without a route, how could government agencies and the public have the ability to evaluate the environmental impact?

If the District court judgment is confirmed by the state Supreme Court this fall then the nonpolitical Nebraska Public Service Commission (PSC) will then propose another route for the pipeline through their  scientific and public process.  Undoubtedly, Nebraskans will weigh in at that point outlining the threats to the sensitive Ogalala Aquifer, a critical and sensitive water supply source for people and agriculture in the region.

Debate over Nebraska pipeline route ongoing

The debate over the Nebraska route isn’t new.  For a detailed understanding of the history behind the siting of the Nebraska portion of the pipeline, please review the history of the debate over the Nebraska route by my colleague Anthony Swift.  Nebraskans have been debating the route of the pipeline because of the tremendous potential risk it poses one of the largest underground water supplies in the United States.  Back in October 2011, then Governor Heineman called for a special legislative session to pass a pipeline siting law allowing Nebraska to weigh in on a route through the Nebraska Sandhills.  The start of this state session prompted the State Department to pause the process on the pipeline so that Nebraska could determine a proposed route.   Shortly thereafter, Republican-sponsored legislation in the U.S. Congress forced President Obama to make a decision on the pipeline before a pipeline route was even confirmed.  So in January 2012, President Obama – citing the lack of a route in Nebraska – rejected the pipeline. 

After the President’s rejection of the pipeline, TransCanada chose to reapply for a new permit but then lobbied aggressively for a state law to avoid the normal public review process.  TransCanada worked closely with state Republican allies to passed a law (LB 1161) that avoided the normal scientific and public review.  This was the basis for the lawsuit brought by landowners challenging the law that is now deemed unconstitutional.

Why is there a debate over the route?

There is still a significant controversy in Nebraska over the route of the pipeline.  All of the internal debate in Nebraska has to do with the fact that TransCanada has proposed a route through the Nebraska Sandhills which is one of the most sensitive water regions in America’s Heartland.  But while TransCanada made a minor change to the route (moving it only 19 miles from the original problematic route), the pipeline still plunges straight through this sensitive water supply region.  According to my colleague Anthony Swift, “That’s small  comfort to Nebraska’s landowners, given the impact that tar sands spills have been shown to have on waterbodies, uncertainties surrounding spill cleanups in aquifers, and Keystone XL’s leak detection system inability to detect leaks smaller than half a million gallons per day.”

It is easy to say that the process over the decision for this pipeline has been delayed for politics.  But there are real reasons behind the “delay” in the process that have to do with protecting the public’s interest in clean water and safety.  This is a less about politics than it is about good process.

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Michael BerndtsonApr 19 2014 08:38 PM

While Keystone XL sits, we should remember that work on the Enbridge Flanagan pipeline is underway to take diluted bitumen (tar sands) from Pontiac, Illinois to Cushing, Oklahoma. This line is a 36 inch diameter pipeline rated at a capacity of 600,000 barrels per day.

Combine that with the Spearhead line, Enbridge will be able to pump 775,000 barrels of "North American" crude from Illinois to Oklahoma.

At this point Enbridge is feeding tar sands to Whiting, IN BP refinery, Joliet, IL Exxon Refinery, and Lemont, IL Citgo refinery. Along with Wood River, IL refinery (Phillips I believe).

Oh, wait there's more. The Eastern Gulf Crude Access Pipeline from Illinois to Louisiana. The 30 inch diameter 600,000 bbls per day line coming soon.

Lets tally the tar sands pipeline capacity through Illinois: 775,000 to Cushing + 600,000 to Louisiana + 500,000 bbls per day to supply Illinois refineries. I'm guessing somewhere between 1.5 to 2.0 million barrels per day of tar sands + maybe some Bakken light sweet crude capacity through Illinois soon. And not to forget the increase in flow through Lake Michigan and down to Detroit and elsewhere.

Then there's the issue of eminent domain and the Flanagan. From Midwest Energy News April 8, 2014:

"An administrative law judge on Thursday recommended that Enbridge be granted authority to use eminent domain to acquire easements across 127 tracts of land. The final decision will ultimately be made by the Illinois Commerce Commission.

The Southern Access Extension pipeline would cross eight counties and 165 miles directly south from the company’s Flanagan oil terminal at Pontiac, Illinois, to an oil terminal and pipeline hub at Patoka."

Is this all been given a NRDC environmental seal of approval? It's not like Illinois and other Great Lakes states don't have the most productive farmland in the world - and ever sprawling population centers.

AaronApr 20 2014 02:37 AM

Right on Michael! Furthermore, even if the geniuses in Nebraska fall in love the Keystone and welcome it with open arms, that don't impress me much, because the bigger issue is climate change, and the fact that it will result in adding the equivalent of co2 from 6 million cars, not to mention the ridiculous risk it would pose to the land and water aquifers, and if anybody thinks that TransCanada and their bribed experts can guarantee the safety of the pipeline, they need to have their heads examined, because there are Always accidents and spills, it's beyond crazy for America to want this. Stop believing the lies and propaganda from these climate wreckers.

JakeApr 20 2014 06:41 PM


The only thing that will increase emissions is increased consumption. Over the long run, Keystone XL will not increase oil consumption.

Slower development of one area will simply result in faster depletion of another reserve. In the end, the same amount of oil is burned. But since we are preventing the free markets from performing, the end result is less economic growth.

Michael BerndtsonApr 21 2014 09:13 AM

Jake, assuming Aaron doesn't come back to the thread, I'll add two cents. Please accept my apology if I'm being intrusive.

Man's quest for natural resources exploitation predates free market capitalism, i.e. the golden rule, "he who owns the gold rules." It even predates tooth fairy economics.

Tar sands is not Bakken light sweet crude, West Texas Intermediate or Arab Super Light. Avoiding the discussion of energy security, since I'm starting to get as nervous about Harper/Rob Ford administrations as Middle Eastern family businesses, let's focus on production and physical property.

Tar sands has to be strip mined or extracted with heat in situ. Then it has to go through conditioning to remove the sand and whatnot. Then it has to be either upgraded or diluted simply to flow. It's heaviness makes it a more difficult to pump through pipelines and refine. Then there's more pet coke, as of now, gets burned. I believe it's being shipped along with US coal before shipping overseas.

Stoichiometrically wise, many environmentalists want to burn natural gas instead of coal for electricity. Economists want to burn gas simply because it's cheaper. Tar sands contains more bigger (nice english, Mike) hydrocarbons than lighter crude. So it produces more carbon dioxide somewhere along the supply and use chain.

If there was a free market and all the light crude in the world was entering the market, there would be no way on earth that tar sands exploitation would make sound economic sense. Of course, there almost seems to be complete disregard to the environment up in Canada, US, and the globe to keep tar sands exploitation as cheap as possible.

DreddApr 21 2014 09:51 AM

It was not a federal court, it was a state court that held the current pipeline machinations to have been done illegally.

JakeApr 21 2014 05:16 PM


Canadian oil would replace heavy oil imports from Colombia or Venezuela.

Oil demand is inelastic especially in the short term. Preventing the markets from doing what makes economic sense only causes prices to go up. I suspect that is the NRDC's true goal.

Michael BerndtsonApr 22 2014 12:00 PM

Oil and soon LNG global sales is funny. Free market capitalism, I don't believe, it is. Again, assuming peace on earth, there would be no reason to distribute our oil imports like we did over the past 40 years. The cheapest oil to produce would get sold at the cheapest price. And the cheapest oil to refine would be sold at the cheapest price to put in our cars. I don't think that's happening.

Your Venezuelan heavy crude analogy isn't bad, but not really 100 percent correct. If that was the case, there wouldn't have been many billions of dollars spent to upgrade refineries for processing extra heavy crude coming down from Alberta. Gulf coast refineries were handling most of the sandless goo from Venezuela. It kind of seems like they wish they hadn't spent all that money given all 1,000,000+ bbl/day Bakken crude flowing. Oil and gas is already mixing (cutting) some of the Alberta tar sands bitumen with Bakken crude, to balance out overall feedstock.

On heavy oil production:

JakeApr 24 2014 06:38 AM

Yes, you're probably right. Some of those refineries probably wish they hadn't put their money on heavy oil. But at the time, they were not aware of the impending boom on light oil production. Nor were they aware their source of heavy oil would be blocked. Not were they aware that North American oil would become cheaper than global oil, allowing them to actually export refined products.

As for your comment about oil prices, oil trades in a free market where each oil is priced differently based on its quality, cost to transport to the refinery, etc. Everything else being equal, light sweet oil costs more than heavy sour oil. This makes perfect sense because the former is easier to refine and therefore in greater demand.

Donna AlgerMay 19 2014 01:00 PM

Unless depopulation is the goal, there's NO REASON for this XL pipline!

Katherine LopezMay 19 2014 01:37 PM

what needs to be done once and for all is for the leaders of this country to finally release Nikolai Teslas' clean energy technololgy that's they have and are using (just not for the rest of us, where's the profit in that?) for years now. Clean enery abounds. This planet sustains us all and for free! Not just the food but the energy as well. Heads out of the sand people. Take the time to do your own research!!

JakeMay 19 2014 02:16 PM


Since nothing from Tesla's era is still patented, I would recommend you simply start building whatever magical generator you think the govt won't share with the rest of us. The govt can't stop you.

Mike V. May 19 2014 02:30 PM

I don't support the XL pipeline. If America as a nation would come together and compromise to all the alternative energy that is out there, we wouldn't have to depend and tar-oil. Investing in alternative energy is the best option there is.!

Virginia BaysdenMay 19 2014 02:48 PM

The idea of having the XL pipeline crossing America should be abolished. Representatives are elected to serve the best interest of the populace. The pipeline does not. If it did, Canada would keep it to themselves.
All of the time and money being invested towards a pipeline crossing the heartland would be better devoted towards solar energy. If you care then you are against the pipeline.
Actions today affect not only today's population but those in the future. We do not need the risk of poluting our natural resources such as land and water. This pipeline is not in our interests therefore the idea of it should be abolished for all of the United States of America.

Don MMay 19 2014 03:20 PM

even if it were "sweet crude" it still would not be worth the certain risk....How can the proponents of the pipeline be so wrongheaded? LEAVE THE GUNK IN THE GROUND !!

Anon.May 19 2014 04:22 PM

NO.NO.NO. No question. Just plain awful and wrong and destructive. Take the long view this time and stop destroying us!

David YorkMay 19 2014 06:56 PM

Even the remotest danger to our Ogallala Aquifer is reason enough to say no to this pipeline let alone the countless other reasons.

The Ogallala Aquifer is not replaceable. It is a natural underground water resource that is vital to the survival of our Great Plains. No matter who you believed created our wonderful home, Earth, there are unarguably certain resources we cannot endanger - water is tops! Without a plentiful supply of water we die, you do not get a choice on this one.

Endangering the Ogallala Aquifer with this or any other future pipelines is downright ignorant and arrogant on our part as we cannot undo possible damage to this great natural resource.

Praise our government for standing in its way! Government is a good thing, ours is the greatest!

Wil SchaeferMay 19 2014 11:51 PM

Water is precious and necessary; no one can predict human error that could / would destroy the entire aquifer; neither do we have any 100% perfect results in remediating any prior "spills."

Why take the risk to the people? Is it for the money? How much is each affected person worth to the corporate world?

We know that answer!

JakeMay 20 2014 06:33 AM

The notion that a pipeline spill could contaminate more than a small, localized portion of the aquifer is absurd.

First, since they avoid the areas where the aquifer is near the surface, it is highly unlikely that a spill could even reach the aquifer.

Second, liquids in aquifers (water or a contaminate)
Do not migrate more than a couple of feet per year, making widespread contamination impossible and cleanup fairly straightforward.

An aquifer is not like a lake where fluids can flow easily. It is porous rock which holds fluids more or less in place.

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