A Tar Sands End-Around

When Hillary Clinton recently announced that she opposes the Keystone XL –– an indication that she would not OK it if she were to become president –– environmentalists across the country were relieved. It was yet another sign of the potential demise of the massive pipeline intended to carry extremely toxic tar sands bitumen from Canada to the Gulf Coast to be refined and shipped overseas. What many didn’t know, however, was that less than two weeks earlier, on September 10, a federal district judge in Minnesota had heard oral arguments in a lawsuit involving an existing tar sands pipeline that is already carrying more bitumen than the Keystone XL ever would.

That lawsuit was brought by Sierra Club and several other plaintiffs against the U.S. State Department for giving Enbridge Energy Partners a pass. The government allowed this huge Canadian oil and gas company to expand an existing pipeline, one that enters the United States from Canada in eastern North Dakota, without undergoing an environmental impact study or requiring a presidential signoff.

“What Enbridge did was basically an end-around on the process that is intended to give pipelines crossing the United States border a proper environmental review,” explained Andy Pearson, Midwest Tar Sands coordinator for 360.org, an international climate-focused activist group. “They found what they thought was a loophole that has allowed them to skirt that review, and the State Department went along with it.”

While all pipelines that cross into the States undergo environmental review, pipelines carrying tar sands bitumen have come under fire from environmentalists in recent years because of the extremely toxic and nearly-impossible-to-clean-up nature of the material.  Tar sands bitumen is heavier than traditional oil and sinks into the ground or water when it spills rather than floating to the surface. An 800,000-barrel tar sands spill from a gash in an Enbridge pipeline in 2010 poured into Michigan’s Kalamazoo, contaminating roughly 35 miles of the river. After five years and $1 billion in cleanup efforts, the spill is still not completely cleaned up, and many people who lived along stretches of those 35 miles have never been allowed to return to their homes because of the contamination and attendant health risks.

But while the Keystone XL has become a focal point for the tar sands debate, Enbridge’s pipeline sleight of hand has largely gone unnoticed.

What Enbridge did, said Doug Hayes, a staff attorney for Sierra Club and the lead attorney on the State Department lawsuit, was clever –– but illegal. It all started in 2010, when the State Department signed off on Enbridge’s “Alberta Clipper Line.” The Sierra Club and others objected to it. “While the permit was for 450,000 barrels of bitumen to run through the line daily, we knew they planned on expanding that to 800,000 barrels a day,” Hayes said. “And that would mean a great deal more pressure on that pipeline.”

According to Hayes, Enbridge reps said they had no plans to expand the Alberta Clipper, and they won their approval on the condition that if they did eventually decide to expand the line, they would undergo a full environmental analysis.

In 2012, Enbridge said they wanted to expand the Alberta Clipper. The Sierra Club tried to hold the State Department to its word, and that’s when things got tricky, Hayes said. “Now both Enbridge and the State Department saw what was happening with the Keystone XL pipeline, a tremendous amount of scrutiny because the public got riled up, so Enbridge came up with a twist they thought would eliminate the need for an environmental impact study.”

In the same easement as the Alberta Clipper was an older line. Simply called Line 3, it also carried tar sands from Canada to the United States.

Line 3 was built in 1968.

“Line 3 was built before the National Environmental Policy Act was passed,” Hayes said, “and since at that time, prior to NEPA, there were no official limits as to what a pipeline could carry, Enbridge took the stance that they could divert tar sands bitumen from the Alberta Clipper into Line 3 at the border crossing and then replace it into the Alberta Clipper just below the border, thereby circumventing the need for environmental review.”

The State Department bought Enbridge’s plan and allowed the bitumen to begin flowing that way in July.

The Sierra Club filed suit almost immediately.

“What our lawsuit asks is that the State Department stick to their word and limit the flow of tar sands bitumen in the Alberta Clipper line to 450,000 barrels per day until the environmental review on the expansion is completed,” Hayes said. “That review is underway, but the expansion has already happened.”

Lorraine Little, Enbridge’s senior manager of public affairs, said in an e-mail that  “Enbridge is operating its pipelines consistent with the presidential permits and other permits that it holds for Lines 3 and [the Alberta Clipper] while meeting its responsibility and obligations to serve its shippers’ needs. We have responded fully to that lawsuit through our submissions to the court, which are a matter of public record.  We believe that there is no merit to the claims of the Sierra Club and others.”

There is no timetable in which Judge Davis must respond to the oral arguments.

“The State Department says that Enbridge found a gray area with Line 3 and that there is nothing [the State Department] can do about it,” Hayes said. “We think they’re wrong.”