Reasons Why President Obama Must Reject Keystone XL, Part 2

Dean B. Suagee

RELATED: Reasons Why President Obama Must Reject Keyston XL, Part 1

Now that Congress has passed a bill approving the proposed Keystone XL pipeline and President Obama has said he will veto the bill, what’s next? When he does veto it, will the Republicans try to force it through by attaching it to some other “must pass” bill? Will President Obama veto a bill with Keystone in it a second or third time? The stated reason for the president’s veto threat is that there is a process underway to review Keystone XL, a process being overseen by the State Department pursuant to an executive order, and that process should be completed before making a decision. That process is now close to completion, so, regardless of whether Congress keeps trying to push it through, a decision by the president appears likely in the near future.

In an earlier column, I noted that from the media coverage of Keystone XL, one might get the impression that the only real issue is whether it would substantially contribute to global warming. In that column, I pointed out some of the flawed reasoning in the Final Supplemental Environmental Impact Statement (FSEIS), which was prepared for the State Department. In particular, I called out the reliance on a flawed market analysis to support the conclusion that whether or not this particular pipeline gets built will have little incremental impact on climate change. I noted that the market analysis simply assumes that the countries of the world will ignore the warnings issued by the Intergovernmental Panel on Climate Change.

The FSEIS assumes that the countries of the world will not implement programs to achieve reductions in greenhouse gas (GHG) emissions on the scale needed and, instead, will allow markets for fossil fuels to operate on a business as usual basis. If, however, the countries of the world do act to reduce GHG emissions and governmental policies to promote displacement of market demands for fossil fuels with renewable energy and efficiency, the projections in the FSEIS market analysis will be proven wrong, as tar sands crude becomes no longer profitable. Since transport by pipeline costs less than by train, if Keystone XL is allowed to be built, the fossil fuel companies that have invested in rights to extract tar sands crude can be expected to carry on with their extraction longer before the bottom falls out of that market, adding substantial amounts of GHG emissions for as long as they can stay in business.

There are other reasons for rejecting Keystone XL in addition to climate change. This column discusses some of those other reasons. It is largely because of such other reasons that a great many people – comprising a diverse coalition of organizations – are so strongly opposed to Keystone XL. The opposition includes the Cowboy Indian Alliance, a coalition of ranchers, farmers, Indian tribes, and individual tribal members in Nebraska, South Dakota, and Montana. Many of these folks are worried about the prospects of leaks and spills from the pipeline polluting rivers and streams and the Ogallala aquifer. That aquifer is the source of drinking water for millions of people and is also a major source for irrigated agriculture.

This worry is compounded by the fact that it would not be a pipeline for conventional crude oil – rather it would be transporting something they call “diluted bitumen.” Spills into land or water are much harder to clean up than oil. And pipelines do leak. The FSEIS reports that there were 1,692 crude oil pipeline spills between 2002 and 2012, including 68 incidents that involved more than 1,000 barrels. Even new pipelines leak. For example, the Keystone 1 pipeline, which began operation in 2010, had twelve spills in its first year.

Ranchers, farmers and other landowners also object to the use of eminent domain to give the pipeline company, TransCanada, rights-of-way across their land. Such takings of private property are not for the public interest but rather for the financial gain of a private foreign company. A group of landowners in Nebraska recently won a state court ruling on this issue.

Another kind of concern raised by tribes and tribal citizens is the damage to, and destruction of, cultural resources along the route of the proposed pipeline. TransCanada has planned its route so that it avoids Indian trust land, but a major section of the route does cross through territories that were reserved for tribal homelands in the Fort Laramie treaties of 1851 and 1868. There are thousands of cultural resource sites along the proposed route, and tribal representatives generally regarded the State Department’s efforts to consult with them, as required by the National Historic Preservation Act, as having been inadequate. If the pipeline goes through, there would be widespread adverse effects on traditional cultural properties and other places of religious and cultural importance.

Impacts in Canada have not received much coverage in the media in the United Stats. The FSEIS barely mentions such impacts, basically leaving it to the Canadian national and provincial governments to decide whether such impacts are acceptable. That the FSEIS ignores them is not a valid reason for pretending that the devastation is not happening. We really shouldn’t give ourselves a pass to ignore these impacts.

Mining the tar sands in Alberta is an ugly, dirty business. See for yourself: Google “tar sands Alberta.” Clearcutting the forests and strip-mining is just plain devastation. Mining also uses great quantities of water and produces 1.5 barrels of toxic waste for each barrel of bitumen – as of 2013, toxic waste ponds covered some sixty-square miles, death traps for migratory birds. Those toxic ponds leak into the tributaries of the Mackenzie River, poisoning fish and the people who eat those fish.

The alternative to strip-mining – in situ extraction, injecting high-pressure steam into the ground – has its own set of impacts. The surface disturbance for roads, pipelines, wellpads, and facilities is much greater than for conventional oil extraction. About eight percent of the forest is cleared, and what’s left is fragmented, resulting in major losses of wildlife populations. A Canadian nongovernmental organization that is a good source of information on the impacts of tar sands extraction is the Pembina Institute. I met some of those folks a year ago, in the context of helping the Oglala Sioux Tribe organize a meeting of Keystone opponents in Rapid City. That’s how I learned that in situ extraction is not just reducing the population of caribou, but, rather, wiping out entire herds.

How big is the “footprint” of tar sands extraction? The FSEIS says that, as of 2010, 276 square miles had been “disturbed” by tar sands mining. It also says that the maximum area “available” for tar sands mining is 1,854 square miles. That’s an area almost as large as Delaware. And the impacts on the boreal forest are not limited to the footprints that are “disturbed.”

There are people living there, too, in the region that is being sacrificed for tar sands extraction. Some of those people are members of Canadian First Nations. According to the FSEIS, there are 18 First Nations and six Metis settlements in the tar sands extraction area, with a total population of about 23,000.

The Athabasca Chipewyan First Nation has been a leading opponent of tar sands extraction, and a critic of the Canadian government’s failure to seriously address impacts on aboriginal and treaty rights, including rights to hunt and fish. It can be argued that the destruction of wildlife habitat caused by tar sands extraction violates the human rights of affected First Nations, including their rights to self-determination, to preserve their cultures, and to provide for their subsistence through traditional practices such as hunting and fishing. Such rights are proclaimed in the United Nations Declaration on the Rights of Indigenous Peoples, and are also grounded in multi-lateral treaties such as the International Covenant on Civil and Political Rights. Self-determination and the right of a people to its means of subsistence are enshrined in Article 1 of that Covenant; the right to culture is in Article 27. Thus, the destruction of the ecosystems on which those indigenous peoples depend deprives them of their human rights.

The obligations that countries accept by ratifying international treaties are, in theory, legally binding, but the mechanisms for enforcing such “binding” obligations are weak. Enforcement largely depends on what might be called public shaming, in which one country calls attention to the human rights violations of other countries. Countries tend to be reluctant to shame their friends, and Canada is a friend of the United States. So we don’t talk about how the impacts of tar sands extraction constitute violations of the human rights of indigenous peoples in Alberta. Nevertheless, the United States should not be complicit in these human rights violations.

These are some of the reasons why permitting Keystone XL would not serve our national interest. It’s time for President Obama to reject it once and for all.

Dean Suagee is of counsel to Hobbs, Straus, Dean & Walker, LLP, in Washington, D.C. He is a citizen of the Cherokee Nation. 

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