Uncle Sam Mum on Keystone Pipeline

SAN FRANCISCO (CN) - The Army Corps of Engineers stiff-armed the Sierra Club's request for records on the controversial Keystone tar sands pipeline, the environmentalists claim in court.

The Sierra Club wants to see TransCanada's preconstruction notifications for the proposed Keystone XL tar sands pipeline, which were filed with the Corps.

The environmental group claims it needs to see the documents to ensure the project complies with Section 404 of the Clean Water Act, "due to hundreds, if not thousands, of waterways that must be dredged and/or filled along the pipeline route."

"If fully built, the proposed pipeline would transport at least 830,000 barrels per day of tar sands crude oil from Alberta, Canada, crossing the U.S.-Canadian border in Montana, heading south through South Dakota, and connecting to the existing Keystone pipeline system in Nebraska," according to the federal FOIA complaint.

TransCanada applied for a presidential permit for the Keystone XL project in 2008. After the State Department denied the application in 2012, TransCanada split the project into two segments and reapplied. The State Department the Corps of Engineers are evaluating the project's environmental impacts under the National Environmental Policy Act.

Clean Water Act regulations require the Corps to comply with the Environmental Protection Agency's guidelines when issuing permits to projects that involve dredging and filling U.S. waters. The Corps cannot issue permits that allow discharge of dredged materials if there are alternatives to discharge or if the discharged materials will pollute the water and harm the environment.

But a nationwide permit program enables the Corps to bypass individual permitting and site-specific environmental review. Nationwide Permit 12 allows the Corps to issue permits for projects involving construction of "utility lines and associated facilities [including oil pipelines]" if the project causes less than half an acre of water loss (brackets in complaint).

Because Nationwide Permit 12 enables developers to use the one permit for each water crossing, the amount of water that can be lost or degraded by these projects is limitless, the Sierra Club claims.

Under Nationwide Permit 12, developers must submit preconstruction notifications to the Corps if the project meets certain criteria. If it does not meet these criteria, the developer can start construction without informing the Corps or the public.

TransCanada's preconstruction notifications contain important information about the Keystone pipeline, including maps that detail its route near communities and "sensitive water resources," the wetlands and forests that will be destroyed in the course of construction, and an application to have the project verified under Nationwide Permit 12, the complaint states.

The Sierra Club wants to see these documents to inform the public and its members who live near the project area about the dangers of potential oil spills.

The Corps of Engineers rebuffed it, citing the "deliberative process" privilege under the Freedom of Information Act - but that exemption does not apply to documents that other parties have submitted to the Corps, the Sierra Club says.

The Corps did not respond to the Sierra Club's appeal by the 20-day statutory deadline.

The Sierra Club seeks declaratory judgment that the Corps violated the Freedom of Information and Administrative Procedures Acts, and its wants to see the records, immediately.

Gene Pawlik with the Corps of Engineers Public Affairs Office told Courthouse News in an email that the Corps "does not comment on matters in litigation."

The Sierra Club is represented by house counsel Sunil Bector.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit