In a last-ditch attempt to revive the Keystone XL pipeline, 21 states led by attorneys general from Texas and Montana have sued President Joe Biden, alleging he overstepped his presidential authority in canceling the pipeline.
The lawsuit, which also names several of Biden’s Cabinet officials, argues the power to revoke Keystone XL lies with the states. In their complaint, filed March 17, Texas Attorney General Ken Paxton and Montana Attorney General Austin Knudsen allege Biden “lacks the power to enact his ‘ambitious plan’ to reshape the economy in defiance of Congress’s unwillingness to do so.”
Arguing “on behalf of the States through which Keystone runs,” Paxton and Knudsen also released a joint statement on March 17, further criticizing Biden for what they say amounts to overstepping congressional authority. All states in the lawsuit are headed by Republicans and all went to Trump in the 2020 election with the exception of Georgia.
The lawsuit is just the latest skirmish in a long legal fight over the proposed pipeline expansion, which would deliver more than 800,000 barrels of carbon-intensive tar sands oil per day from Alberta Canada to Steele City, Nebraska, where it would meet with existing pipeline infrastructure to travel further south to oil refineries in the Gulf Coast.
In 2011, Congress forced then-President Barack Obama to make a decision on Keystone XL by including a provision in an unrelated tax bill that required him to decide the project’s fate within 60 days or determine it wasn’t in the national interest. After several years of turmoil, Obama finally rejected Keystone XL in 2015.
But when President Donald Trump took office, he invited parent company TC Energy to reapply for a new permit for Keystone XL. They did and were approved.
On the first day of Biden’s presidency, he issued an executive order canceling the Keystone XL pipeline — making good on his promise to the climate activists who helped get him elected, but inviting the lawsuit brought by 21 states on Wednesday who say they will be hurt economically by Biden’s decision.
They’re not the only ones unhappy with the pipeline’s cancellation.
During a January 22 call to celebrate Biden’s presidential victory, Canadian Prime Minister Justin Trudeau voiced Canada’s “disappointment” with Biden’s decision. And TC Energy (formerly TransCanada), which runs the $8 billion pipeline, announced plans to cut 1,000 jobs “immediately.”
So when Biden met with Trudeau for a virtual sit-down on February 23, there were hopes on the Canadian side that the meeting could save the long-disputed Keystone XL pipeline.
Biden and Trudeau discussed several shared concerns — among them Covid-19 relief, a joint response to China, and addressing climate change — but in their public remarks, they were notably silent about Keystone XL.
Right before the meeting, the Washington Post reported that on February 22, a Biden official had said it was the end of the road for Keystone XL. “The decision will not be reconsidered. It has already been made,” the official told reporters on the condition of anonymity.
Just after the meeting, Biden’s White House released its US-Canada Partnership Roadmap, which says the two countries will “launch a High Level Climate Ministerial” who will help align US-Canada policies on climate change and “increase ambition to tackle the climate crisis.” The climate ministerial will also help both countries work toward stronger targets under the Paris climate agreement, accelerating the transition to net zero emissions by 2050.
“There’s just no room for countries like Canada and the US to be investing in the expansion of additional fossil fuel reserves,” Anthony Swift, director of the Canada Project at the Natural Resources Defense Council (NRDC), said.
Activists and experts say if Biden and Trudeau are really serious about bilateral collaboration on climate change, the cancellation of the Keystone XL pipeline should be a starting point. Moving forward with policies necessary to limit global warming to 1.5 degrees Celsius and avoid the worst impacts of climate change will require Canada and the US to push each other to make an ambitious transition to a clean energy economy.
That transition will only be underway once existing Keystone XL infrastructure is removed and other cross-border fossil fuel expansion projects (like Line 3) are canceled. In addition, ensuring the rights of Native people are respected is critical if both countries want to be seen as leaders on climate justice.
Here’s how the Keystone XL pipeline project ultimately failed, and why Biden and Trudeau’s “accelerated climate ambition” should include respect for Indigenous land rights and the end of fossil fuel pipeline expansion projects.
The Keystone XL pipeline, briefly explained
The Keystone XL pipeline became an almost perfect example of the various stakeholders — Native communities, climate activists, scientists, policymakers, farmers, landowners, and everyday citizens — engaging in the broader debate about climate change.
Canada-based TC Energy first proposed the 1,200 mile Keystone XL pipeline in 2008 as a way to quickly pump 830,000 barrels of tar sands (a.k.a. oil sands) per day from Canada’s Alberta province across the border to Steele City, Nebraska. Once there, the Keystone XL extension would converge with existing pipeline infrastructure, traveling south to Texas for processing in Gulf Coast oil refineries.
When the idea for Keystone XL was conceived back in the 2000s, the project made a lot of sense — the US economy depended on oil, and supporters of the pipeline claimed it was in both countries’ interest to find a way to transport oil efficiently across the continent. With oil prices high and demand steady, Alberta’s oil sands easily racked up $200 billion in investment.
But there are considerable differences between oil from Alberta’s tar sands and conventional oil, which quickly began to wear on the region.
For starters, extracting oil from Alberta’s oil sands, which contain bitumen (tar), a dense type of petroleum, takes a lot of energy. Most of Canada’s tar sands oil is trapped beneath boreal forest — only 20 percent of the oil is located near the earth’s surface, where it can be easily mined, which means the forest must be cleared for the most intensive mining.
The majority of the oil is mined by injecting hot water into wells 75 meters below ground to liquefy the oil for pumping, which is why tar sands oil has a reputation for being among the dirtiest types of oil.
Many Indigenous rights groups and people from communities along the proposed route argued the pipeline extension would have disastrous impacts for Native communities in Alberta: A lot of the water used to help extract oil from Alberta’s oil sands comes from the Athabasca River. Studies have linked leaks from oil sands pipelines like Keystone XL to significant degradation of nearby land and water resources.
A major concern is tailings ponds, the product of toxic waste from mining in the tar sands that can sicken communities and wildlife that depend on the land to survive.
“The land is our solution, the water is our solution, the air is our solution to meet our needs,” Jesse Cardinal of the Kikino Metis Settlement, director of Keepers of the Water, a collective of First Nations who have come together to protect the nearby Mackenzie River Basin, told me. Cardinal helped lead the Tar Sands Healing Walk, a grassroots movement to bring people face to face with the destruction of the oil sands as a way of healing.
Environmental groups took note of Indigenous opposition to the Keystone XL pipeline. After then-President Barack Obama’s climate legislation suffered a stinging defeat, the climate movement coalesced around getting the Keystone XL pipeline canceled in 2011.
Inspired by Indigenous-led opposition to the pipeline, several environmental groups organized two weeks of sit-ins in front of the White House in the fall of 2011, leading to the arrest of more than 1,200 people. The arrests brought increased media attention at a time when there was relatively little national coverage of climate-change-related issues.
James Hansen, who has been called the “father of global warming” for his role in testifying before Congress about the science of human-induced climate change way back in 1988, attended the protests at the White House. At the time, Hansen said unchecked exploitation of Canada’s oil sands would be “game over” for the climate.
Facing immense pressure from the anti-Keystone movement, Obama finally canceled the pipeline in 2015. He defended his decision in a press conference, saying the pipeline wouldn’t make gas any cheaper or improve American energy security. He added that approving the pipeline would ultimately undercut US global leadership on climate change, which he’d previously said was a red line for approving Keystone XL.
In January 2016, TC Energy filed a lawsuit against the US for canceling Keystone XL, using the North American Free Trade Agreement (NAFTA) to request $15 billion in damages for what the company said was the arbitrary suspension of the project. The company then waited to try its luck with the next administration — which turned out to be Trump’s.
Keystone XL starts — and stops — under Trump
In January 2017, just days into his presidency, President Donald Trump issued an executive order inviting TC Energy to reapply for a presidential permit for Keystone XL to cross the Canadian border. He also promised a speedy process, just over a year after Obama had said the pipeline extension wasn’t in the national interest.
A few months later, the State Department granted the permit.
But Obama’s reasons for canceling Keystone XL — it wasn’t in America’s national interest, and it conflicted with US leadership on climate change — were still valid, and activists (and much of the public) were still paying attention.
“Before Obama’s decision, pipeline companies and the oil industry assumed every pipeline would get approved regardless of how poorly conceived the project was,” the NRDC’s Swift told me.
After Obama’s decision, it became more difficult to justify Keystone XL to the public.
“Public scrutiny around Keystone XL and the permitting process has shifted the expectation that pipelines would be rubber-stamped on its head. Now the public does want to see a robust analysis and a confirmation process that does make it difficult to move such pipelines forward,” Swift said.
Because oil spills from tar sands pipelines are commonplace, scientists and activists argued that a “robust analysis” to examine the risks to water resources and the communities that depend on them should be conducted before the Keystone XL project goes forward.
In 2016, the National Academy of Sciences released a study that said diluted bitumen (which composes the majority of tar sands oil) differed from the other types of oil traveling through US pipelines in a way that makes it more susceptible to hazardous leaks. In 2017, 210,000 gallons of oil leaked from the existing Keystone pipeline in South Dakota.
“Any fact-based environmental review reveals reasons policymakers should not grant permits to fossil fuel expansion projects like Keystone XL in a world that is trying to avoid the most catastrophic impacts of climate change,” said Swift.
But the need for an environmental review didn’t stop the Trump administration from trying to rush through Keystone XL.
In January 2020, Trump’s White House made a last-ditch attempt at fast-tracking Keystone XL and similar projects across the country by limiting implementation of the National Environmental Policy Act (NEPA), which requires the federal government to conduct assessments of the environmental, economic, and social impact of its actions before getting started on any project.
But in July 2020, the Supreme Court killed any hope of completing Keystone XL under the Trump administration, siding with environmental groups from Montana who argued that the Army Corps of Engineers’ permitting process for the Keystone XL pipeline should undergo a full environmental review because it would cross bodies of water.
Biden killed the pipeline for good — but demand for it had already weakened
Demand for oil, which had already been declining for some time, was hit hard in 2020 by falling investment, severe storms that hurt production, and the coronavirus pandemic. And in recent years, Alberta’s oil sands industry, once booming with money, has had trouble attracting investment.
“With falling oil prices, both because of the pandemic and generally down since 2014, the industry is under a real squeeze, and we’ve seen a lot of players exit the market,” Sven Biggs, Canadian oil and gas programs director at Stand.earth, an environmental grassroots organization, told me.
“ConocoPhillips, Shell, Statoil from Norway, [and] the Koch Brothers have sold their stakes in the tar sands and moved on, which means there’s less need for these pipelines than previously expected,” Biggs added.
TC Energy had a difficult time attracting private investors to Keystone XL — it was only capable of putting shovels to the ground in the project with the help of a subsidy from Alberta Premier Jason Kenney, who approved more than $1 billion in public funds in the spring of 2020 to help the project.
So when Biden pulled the plug for good on Keystone XL, climate concerns and falling investment in Alberta’s oil sand led experts to believe that Keystone XL was dead.
But for many Indigenous groups, climate activists, and people from communities impacted by fossil fuel infrastructure, this is bigger than Keystone XL.
“The Keystone XL pipeline was never about any single pipeline. It’s about establishing a litmus test rooted in climate science and climate justice for government projects and infrastructure,” Kendall Mackey, manager of 350.org’s Keep It in the Ground campaign, told me.
Moving forward, Biden and Trudeau have a chance to do just that.
How Biden and Trudeau can work together to improve efforts against climate change
If the legal battles fizzle out and Biden and Trudeau are serious about working together to raise US-Canada climate ambitions, activists say they can start by ensuring that existing pipeline infrastructure from Keystone XL is removed, providing greener investment options and returning land to Native communities, and ending fossil fuel expansion projects.
The first step in canceling Keystone XL for good is removing the existing Keystone pipeline infrastructure — which Biden and Trudeau could work together to make happen.
“Now [that Biden has canceled the pipeline], the work of those of us fighting Keystone is to get the equipment, permits, and easements removed, and have TC Energy pack up their stuff and leave the communities for whom the threat hasn’t left because there’s still equipment there,” Mackey of 350.org said.
Beyond environmental concerns, pipelines, which often see transient camps for workers adjacent to Native communities, have been linked to the epidemic of missing and murdered Indigenous women and girls.
Biden and Trudeau (or the chosen ministerial) could also make sure that TC Energy, not taxpayers, foot the bill for removing the pipeline infrastructure.
“In a perfect world, companies would pay the cleanup costs, but far too often it’s communities and taxpayers who get stuck with the cleanup bill, straight from abandoned wells down to cleanup in refinery communities,” Stand.earth’s Biggs said.
Indigenous groups need better investment options than projects like Keystone XL, as well as a government that uses climate policy to make decisions.
“With the Canadian government reducing funding to Indigenous communities overall, they need money to run their communities and the option is investing in projects like the Keystone XL pipeline,” Keepers of the Water’s Cardinal said.
Several Native groups have invested in pipeline projects like Keystone XL, but according to Cardinal, the Canadian government could change that.
“We know there are better options. But it takes political leadership to support them. We have elected political leadership that is failing us right now. And Indigenous communities are being taken advantage of,” Cardinal said.
Many Indigenous groups on both sides of the US-Canadian border are also asking for the land back so they can return to traditional practices such as fishing, hunting and trapping, and making medicine.
“That’s part of the solution as well, [giving] land back to Indigenous people so they can steward the land the way it should be,” Cardinal added.
But all this won’t be enough if the US and Canada continue to allow fossil fuel expansion projects. There are several tar sands pipelines in the area, including the controversial Line 3, which would bring a million barrels per day from Alberta’s tar sands to Superior, Wisconsin. Activists want Line 3 to be subject to the same rules as Keystone XL, to bring Canada in line with its climate targets and to allow the US to retain leadership on climate change.
“There’s no question that Canada would and could be more ambitious with its climate goals if it could disjoint itself from its tar sands industry,” the NRDC’s Swift told me. “We still have Line 3, an area where Biden has a chance to make sure it is subject to the same environmental metrics as Keystone was.”
Activists also argue that given the decline in investment in Alberta’s tar sands, the financial reasons for such pipeline projects will continue to weaken as time goes on. The coronavirus pandemic has only sped that up.
“We’re in that tough fight on Line 3, but I think the likely outcome [if they go ahead] is that there won’t be enough market and production in tar sands to fill those pipelines. It’s gonna become a stranded asset. If they’re built, then it’s only a matter of time,” Biggs said.
The future of Alberta is also at risk as long as its leaders tie it to a dying industry. The alternative is for the US and Canada to push each other to ensure a transition is possible.
“The employment opportunities associated with rebuilding our energy infrastructure and manufacturing [to meet] the demands of the clean energy economy hold much more promise than continuing our reliance on fossil fuels,” Swift said.