Keystone XL Kibosh: The Next Step

Depending on one’s point of view, TransCanada’s Keystone Pipeline project is either a shining accomplishment towards an American energy solution or an unwelcome contribution to a detrimental system of dependence on fossil fuels.  Despite the predilections of either side, the fact remains that the primary and secondary phases of the pipeline system are already operational.  Future stages to foment expansion of the network are still the subject of much debate.  However, there is promise that the pipeline’s expansion may not be as extensive as once conceived; the presence of a procedural limbo surrounding the so-called “Keystone XL” phase of the project provides an opportunity for meaningful environmental discourse.  The implementation of the new phase is dependent on whether or not the United States Department of State (the “Department”) finds that the benefits of the project are worth the potential costs through examination of an additional Environmental Impact Statement (“EIS”).[1]

The Keystone Pipeline system has enjoyed a short though active history.  Proposed in February of 2005 by TransCanada and beginning construction in mid-2008, the original 2,148 mile section of the Keystone Pipeline, running between Alberta, Canada and Southern Illinois, was operational by June of 2010.[2]  This construction was quickly followed by a 298 mile extension section which split from the original pipe in Northern Nebraska and led to Central Oklahoma. [3]  This expansion was operational by February of 2011.[4]

The two proposed and final phases of the Keystone Pipeline system have not been met with such expeditious progression as the existing sections.  The first proposed extension, a 435 mile addition leading to refineries on the Gulf Coast of Texas, is currently under construction despite significant protest.[5]  The second and most contentious segment, Keystone XL, is an additional source pipeline from Alberta, Canada to Nebraska.  TransCanada intends for the Keystone XL segment to become a secondary supply route for oil sands on par with the scale of the original Keystone Pipeline.[6]

Keystone XL has drawn the most public animus because the pipeline was proposed to cross through the Nebraska Sand Hills wetlands; buried in the ground above the Ogallala Aquifer.[7]  The Ogallala Aquifer is a source of drinking water for more than two million Americans and is the primary source of agricultural irrigation for 30% of crops grown in the United States.[8]  As it makes its transit across the aquifer, a pinhole leak (or worse) anywhere on the pipe has the potential to contaminate the groundwater with diluted bitumen, a heavy black viscous oil.[9]

It was with this potentially harmful scenario in mind that the Department of State decided an alternate route for Keystone XL was necessary.  The Department released a special announcement that the proposed pipeline route was too risky and therefore inadequate in light of environmental concerns.[10]  The release further stated that a new EIS, followed by a period of notice and comment for interested parties was necessary.[11]  The Department specified that through the EIS, it will conduct a new review as to whether the Keystone XL project is truly in the “national interest” with special consideration given to environmental impacts (including climate change), energy security, economic impacts, and foreign policy.[12]

Thus far, the Department has only been able to publish a notice of intent to conduct the new EIS due to the fact that TransCanada has not yet given information specifying an alternate route which would avoid the Ogallala Aquifer.[13]  Once TransCanada specifies the actual route, expected later this year, the Department can properly release a tailored EIS.[14]  Upon issuance of this new EIS, a public notice and comment period is required.[15]

With this new period of notice and comment comes a second chance to quash development of the project.  Active participation in the permitting process is crucial in order to ensure that natural ecosystems and valuable resources are not harmed by the construction and operation of the oil pipeline.  Those with an interest are encouraged to contact environmental groups such as the Natural Resources Defense Council, the Environmental Defense Fund, or others to participate in the upcoming procedural clash.

This issue has the potential to be an exhilarating coup for environmental groups and those looking to chip away at American reliance on fossil fuels, or it can be another example of large energy corporations’ stranglehold on American environmental and energy interests.  It is for the benefit of future generations that the former option wins out, ensuring the ability for people and wildlife to enjoy the Great Plains of the United States and reduce dependence on fossil fuels.

[1] Press Release, U.S. Dep’t of State, Keystone XL Pipeline Project Review Process: Decision to Seek Additional Information (Nov. 10, 2011), available at

[2] TransCanada Corp., Keystone Pipeline Receives Presidential Permit – Construction to Begin in Second Quarter of 2008 (Mar. 14, 2008),; TransCanada Corp., Keystone Pipeline Starts Deliveries to U.S. Midwest (June 30, 2010),

[3] TransCanada Corp., Keystone’s Cushing Extension Begins Deliveries to Oklahoma (Feb. 8, 2011),

[4] Id.

[5] Dan Frosch, Last-Ditch Bid in Texas to Try to Stop Oil Pipeline, N.Y. Times, Oct. 13, 2012, at A14; Steve Mufson, Keystone XL Pipeline Opponents Turn to Civil Disobedience, Wash. Post, Oct. 15, 2012, available at

[6] TransCanada Corp., TransCanada to Work with State on New Keystone XL Route Options (Nov. 10, 2011),

[7] John M. Broder & Dan Frosch, U.S. Review Expected to Delay Oil Pipeline Past the Election, N.Y. Times, Nov. 11, 2011, at A1.

[8] U.S. Geological Survey, High Plains Regional Ground-Water Study (2000), available at

[9] U.S. Dep’t of State, Final Environmental Impact Statement for the KEYSTONE XL Project, Vol. 2 § (Aug. 26, 2011); Diluted bitumen consists of an oil-stock, such as asphalt, which is infused with natural gas or a like solvent to aid in flow of the material within a pipe and is typically used for conveying oil sands.

[10] U.S. Dep’t of State, supra note 1.

[11] Id.

[12] Id.

[13] Notice of Intent to Prepare a Supplemental Environmental Impact Statement, 77 Fed. Reg. 36,032, 36,032 (June 13, 2012); TransCanada Corp., Application of TransCanada Keystone Pipeline L.P. for a Presidential Permit 8 (May 4, 2012), available at

[14] Id.

[15] National Environmental Policy Act § 102, 42 U.S.C. § 4332(c) (2012); 5 U.S.C. §§ 553, 552 (2012).

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