Washington - A growing determination by Nebraskans to protect their precious aquifer could give environmentalists a small victory in their fight against the Keystone XL pipeline, which would pump heavy crude oil from Canada through America's heartland.
The momentum in Nebraska accelerated last month when Gov. Dave Heineman, a Republican who supports the $7 billion pipeline project, told President Obama and Secretary of State Hillary Clinton that it should be rerouted to avoid the Ogallala Aquifer, the economic and environmental lifeblood of the Great Plains.
His surprise announcement in an Aug. 31 letter came on the heels of the State Department's final environmental evaluation of Keystone XL. That document emphasized that Heineman and the Nebraska Legislature have a potent tool at their disposal: the authority to dictate where and how, and even if, oil pipelines are buried in their state.
Until now, neither Heineman nor the Nebraska Legislature had shown much inclination to seize control of the pipeline route. The governor had declined to involve himself in the debate, sticking to a philosophy that the positioning of pipelines is a federal matter. For the most part, legislators followed suit.
The state has so few oil pipelines that the legislature has been content to let federal authorities at the Department of Transportation regulate them. When a state senator tried to transfer oversight responsibility to the state Public Service Commission earlier this year, her bill never emerged from the committee where it was introduced.
But a steady drumbeat from constituents concerned about their irreplaceable water source has evidently convinced the governor to leap off the fence. For instance, about 500 Nebraskans rallied at the governor's mansion Aug. 5 during a "Shine the Light on Heineman" event, and activists staffed a booth at the state fair. Controversy over the Keystone XL also has been almost daily fodder in local newspapers and on radio broadcasts. Heineman, who would be up for a third term in 2014, didn't respond to requests for comment.
The fact that the State Department has ignored similar pipeline rerouting requests from other politicians and the Environmental Protection Agency isn't stopping Nebraskans from forging ahead.
On Aug. 26, the same day the State Department released its final environmental evaluation, pro- and anti-pipeline forces announced they had formed the Save Our Sandhills coalition. Collaborators such as Bold Nebraska, the Sierra Club, the Nebraska Farmers Union and the League of Women Voters have the sole mission of forcing a Keystone XL detour around an ecologically fragile landscape where the aquifer lies close to the surface.
It's still unclear, however, what will happen to the overall project if Nebraska forces a reroute of nearly 300 miles of pipeline proposed within its borders. Conservation organizations said the project could be delayed by as much as a year, because easements would have to be obtained from a new set of property owners and because further environmental review might be needed. TransCanada did not respond to inquiries. A State Department spokeswoman would say only that officials are now focused on whether or not the pipeline is in the national interest.
"Our bottom line is, we want to stop it," Ken Winston, policy director with the Nebraska Sierra Club, told Inside Climate News. "But if we can get it rerouted, then that would be a really big deal. This isn't one of those deals where if we can't stop it, we’re going to take our ball and go home. We want to prevent damage in whatever way we can."
"We’ve just poked the giant with the stick but it's far from dead," he said. "We need to keep fighting."
Delaying Nebraska's Pipeline?
If it is built, TransCanada's Keystone XL will pump diluted bitumen—a particularly dirty and corrosive type of heavy crude—1,702 miles from the oil sands mines of Alberta to refineries along the Gulf Coast. Due to the international nature of the project, Clinton is tasked with granting or denying the required presidential permit. She has vowed to make that decision by the end of the year.
State Sen. Ken Haar said the Save Our Sandhills coalition will move fast to make its case at both the state and federal levels.
The group is pressuring the governor to approve a special state legislative session this fall so senators can pass a law dictating pipeline safety, routing and oversight. Also, they will use a pair of public comment sessions the State Department has scheduled for later this month in Nebraska to convince the Obama administration that aquifers and oil pipelines don't mix. Those gatherings are part of a 90-day review the department is conducting to determine if Keystone XL is in the national interest.
"There's every indication Secretary Clinton is going to authorize the border crossing," Haar said in a recent interview. "Once [TransCanada] turns the first spade of dirt, it's over. So we have to beat that."
Throughout the environmental review process, State Department authorities rejected the idea of an alternate route, maintaining that any ecological risks along the sole route submitted by TransCanada could be managed.
Earthjustice attorney Deborah Goldberg isn't directly involved with the Keystone XL project, but her nonprofit advocacy organization specializes in conservation litigation. If Nebraska opts to reroute the pipeline, she said state authorities could argue that the State Department should assess the new route to find out if it would have enough impact to require a supplement to the final environmental analysis.
Ryan Salmon is an energy policy adviser with the National Wildlife Federation, which is seeking to halt the pipeline. A Nebraska reroute would force TransCanada to engage in a new round of easement negotiations with a different set of property owners, he said. That could delay the pipeline project—slated to open as early as 2013—by at least a year.
Special Session in the Mix?
Haar, a Democrat who represents the district that includes the capital city of Lincoln, is drafting a bill modeled after one in Montana that allows state environmental authorities to approve alternate pipeline routes chosen by legislators. His goal is to pass a law before Clinton issues her decision.
The trick is that Nebraska's Legislature—one body of 49 senators—adjourned last spring and isn't scheduled to resume business until January. Before a special session can be called, 33 senators must agree to one, something that has never before happened, or the governor must demand one.
"It's hard to get 33 senators on board," Winston said. "But with critical mass, Heineman is enough of a political animal to act. It would be the same sort of grassroots groundswell that prompted the governor to write the letter to the State Department."
State Sen. Annette Dubas, a Democrat who represents a rural eastern district that includes Grand Island and the Platte River, introduced the failed bill last winter that would have given the Nebraska Public Service Commission some power to regulate oil pipelines.
While she still wants Nebraskans to have a state-level agency paying attention to oil pipeline siting, she isn't sure she would support a special session. She worries about the expense, and about comments she's heard from other legislators, who say they are confused about how to handle siting scenarios, especially when it comes to abutting states.
For instance, she asked, what happens when two states disagree about a pipeline border crossing?
Dubas still wants the pipeline out of the sandhills. But she's hoping Heineman's letter and the upcoming State Department public meetings will persuade the federal government to tackle that delicate job.
Siting Proof Is Clear
The State Department has said, unequivocally, that states can dictate pipeline routes.
Kerri-Ann Jones, assistant secretary of state for oceans and international environmental and scientific affairs, emphasized that point several times in an August teleconference centered on her department’s final environmental analysis of Keystone XL.
"Individual states have the legal authority to approve petroleum pipeline construction in their states, including selecting the routes for such pipelines," that document states. "Different states have made different choices in how or whether to exercise that authority. Some states, such as Montana, have chosen to grant the authority to a state agency to approve pipeline routes through that state. Other states, such as Nebraska, have chosen not to grant any state agency such authority."
"It can't get any more official," Haar said about Nebraska's right to take the initiative. "We have the authority to do pipeline routing if we choose."
Anti-pipeline Nebraskans had already proven that point back in March when they uncovered a Sept. 10, 2010 memo issued by the Congressional Research Service, part of the Library of Congress.
A legislative attorney and an energy specialist wrote the report at the behest of Nebraska GOP Rep. Lee Terry, who supports the pipeline. As a member of the House Energy and Commerce Committee, the seven-term congressman has sponsored a bill that would require the Obama administration to reach a decision on Keystone XL by Nov. 1. The House has passed that bill but the Senate has ignored it thus far.
"The federal government does not have siting authority for oil pipelines, even interstate pipelines," the two researchers wrote in the six-page report. "In the absence of federal government siting authority, state laws establish the primary siting authority for oil pipelines, including interstate oil pipelines. In Nebraska, there do not appear to be any permitting requirements that apply specifically to the construction and operation of oil pipelines."
The legislature has generally taken a hands-off approach to the pipeline.
Before adjourning in May, it passed a watered down version of an oil pipeline reclamation bill. The measure guarantee that a landowner's property will be restored after an underground pipe is installed. But a provision that would have required pipeline operators to establish a trust fund for landowners to cover environmental damages was eliminated from the final bill.
Another bill never emerged from the Natural Resources Committee, where Dubas's bill also languished. It would have spelled out insurance requirements as well as liability, cleanup and siting standards for pipeline builders so landowners would be protected in the case of leaks or spills or if a pipeline was decommissioned or abandoned.
Out of the Ogallala
If Nebraska doesn't reroute the pipeline, it seems unlikely that the State Department will step in, as Heineman has asked it to do. Department officials have ignored similar pleas from a bevy of well-connected politicians, as well as warnings from EPA experts who have repeatedly recommended avoiding the aquifer and sandhills.
In his four-paragraph letter, Heineman points out that 254 miles of the Keystone XL pipeline would be situated directly over the Ogallala Aquifer in Nebraska. Farmers count on 92,685 irrigation wells to provide water for more than 8.5 million acres of crops and pastures, he said.
"Maintaining and protecting Nebraska's water supply is very important to me and the residents of Nebraska," he said, noting that farm markets contribute $17 billion to the state's economy each year. "This resource is the lifeblood of Nebraska’s agriculture industry."
Heineman did not suggest a specific alternate route. However, his fellow Cornhusker, Republican U.S. Sen. Mike Johanns, has long advocated that the State Department and TransCanada pursue a route in eastern Nebraska, far from the sandhills landscape.
"The proposed route is the wrong route," Johanns, a former secretary of the U.S. Agriculture Department, wrote in a news release backing Heineman’s letter. "It's clear to me, after traveling throughout the state, that most Nebraskans agree a better route is needed.
"The governor has now unequivocally stated that the application should be denied. I agree," Johanns said. "TransCanada should be forced to select a more appropriate pipeline route."
Last fall, Johanns urged federal officials to reroute the Keystone XL north from Steele City, Neb., to the U.S./Canada border in North Dakota instead of Montana. Steele City is south of Lincoln near the Kansas border. That shorter, more easterly route, he said, would skirt the aquifer and the sandhills.
His suggestion would position the Keystone XL parallel to a separate TransCanada oil sands pipeline—confusingly called the Keystone—in eastern Nebraska's more stable soil. Keystone's U.S. segment has already leaked at least 12 times since it began operating in June 2010.
Keeping Up Pressure
In the past, Alberta-based TransCanada has told InsideClimate News that the sandhills route is the only one the company has sought or presented to the State Department. A glance at a map shows it's the most direct route from Montana to Texas.
"If TransCanada's main objection to a reroute is that it's going to cost more money to go around the sandhills, then that's not a valid argument," the Sierra Club's Winston said. "It isn't what an environmental impact statement is all about. Their bottom line isn't our concern."
It's a testimonial to grassroots action, he added, that a conservative state where corn, cattle and college football traditionally reign might be on the verge of an environmental triumph that would resonate across the Great Plains.
Save Our Sandhills is gearing up to attract hundreds, if not thousands, of anti-pipeline activists to the public meetings scheduled for Sept. 27 in Lincoln and Sept. 29 in the sandhills community of Atkinson.
Oil sands specialist Susan Casey-Lefkowicz has tracked the Keystone XL as director of the Natural Resource Defense Council's international program.
Both the State Department and TransCanada erred, she said, by not seriously exploring alternate routes when the pipeline review began more than three years ago.
"The fact that Keystone XL would go through the sandhills and the Ogallala Aquifer is ridiculous," she concluded. "It is potentially huge if Nebraska succeeds in saying no."
InsideClimate News reporter Lisa Song contributed to this report.