10th Circuit Boots Keystone Challenge

     DENVER (CN) – The 10th Circuit on Friday rejected environmentalists’ challenge to the Army Corps of Engineers’ issuance of permits for the southern 485 miles of the Keystone XL Pipeline.
     The Sierra Club et al. sued the Corps of Engineers in 2012 in Oklahoma Federal Court, claiming it violated the National Environmental Policy Act by issuing nationwide permits “without considering the risk of oil spills and the cumulative environmental impacts of pipelines.”
     The Oklahoma City court tossed the complaint, finding that the plaintiffs “did not have a likelihood of success on the merits and that the other equitable factors did not favor granting the injunction.”
     The 10th Circuit in October 2013 affirmed the district court’s denial of a preliminary injunction to stop construction of the pipeline from Cushing, Okla. to refineries near Port Arthur, Texas.
     On May 29 another three-judge panel on the 10th Circuit rejected the Sierra Club’s claims again, affirming issuance of Nationwide Permit 12, and rejecting challenges under NEPA and the Clean Water Act.
     Judges Robert Bacharach, Bobby Baldock and Carolyn McHugh called the plaintiffs’ appeal “unconvincing” and “moot.” Clean Energy Future Oklahoma and the Eastern Texas Sub Regional Planning Commission joined the Sierra Club as plaintiff/appellees.
     “We reject both arguments,” Bacharach wrote for the panel. “The environmental groups waived their claims involving failure to address oil spills and cumulative impacts, and the Corps was not required to conduct an environmental analysis when verifying compliance with the nationwide permit.”
     In the original lawsuit, the plaintiffs said the defendants were “ piecemealing ” approvals of the larger project to get it passed. The State Department delayed a final decision on the pipeline in 2011, citing need for further review of its environmental impacts.
     But with Nationwide Permit 12 in hand, defendant/intervenors Transcanada Keystone Pipeline et al. completed the southern section of the pipeline – known as the Gulf Coast Pipeline – which was up and running by January 2014.
     In a concurring opinion Friday, Judge McHugh agreed that the Corps of Engineers had conducted an adequate environmental impact report. Though the pipeline would cross 2,000 waterways, only 0.63 acres of wetlands would be lost, and each crossing was within the applicable half-acre limit. McHugh also said that the plaintiffs had failed to address the issues during the public comment period.
     Judge Baldock also concurred.
     “I believe we should have found this case to be prudentially moot,” Baldock wrote, citing Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers. “In Hillsdale we had ‘no trouble’ rejecting NEPA mootness concerns because the facility in question was ‘not yet complete.’ Here, the pipeline has been complete and operational for years.”

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