Where Safety Considerations Don’t Matter: The Nebraskan – Keystone XL Story
What is happening?
The long-thought-dead TransCanada Tar Sands Oil Pipeline, the Keystone XL Pipeline, also commonly referred to as the KXL, is currently undergoing legal proceedings in Nebraska for approval to build following the Trump Administration’s decision to greenlight the KXL and DAPL projects earlier in the year. There have already been four public hearings held across the state of Nebraska in York, O’Neill, Norfolk, and Omaha, and a legal intervenors hearing held in the capital, Lincoln, regarding whether TransCanada will have their application approved and the easements granted. Right now, the Public Service Commission in Nebraska is deliberating whether they will give TransCanada the right to use eminent domain on Nebraska landowners in order to build the pipeline without the consent or the proper compensation to the property owners. But all opportunities to give them new information to consider has now passed.
Wasn’t the Keystone XL Denied?
Yes, in 2015 Obama denied the permits to build the pipeline, citing climate change in his decision and the inherent need to get away from this type of dirty and dangerous infrastructure. Obama’s administration was supportive of the pipeline during the Clinton State Department years, but given the growing opposition to the project by environmentalists as the project came closer to reality, it was only a matter of time before he publicly opposed it. But the project was never fully killed, just set onto the back burner. The incoming Trump Administration, and the State Department, headed by Exxon executive Rex Tillerson, approved the project within months of taking office, which led to it being on the docket of the state’s regulatory commission, the Nebraska Public Service Commission.
Where is it traveling? Is the route different than where it was first proposed?
The Pipeline has actually undergone multiple route changes by now, none of which are much if any better than the last, but TransCanada and state officials like former Speaker of the Nebraska Unicameral Legislature, Mike Flood, still find a way to pat themselves on the back after every new proposal, citing their ability to compromise. Because of a siting issue with the state of South Dakota, there is a specific location where TransCanada is trying to come into Nebraska, which unlike their existing pipeline (which is along the eastern edge of the state), the Keystone 1, the KXL Routes have all been coming into the state from the north central border of Nebraska, This would make the pipeline cross the Nebraska Sand Hills, which is a very fragile ecosystem with loose, porous soils, and numerous endangered species, as well as run directly over the recharge zone of the Ogallala Aquifer, the nation’s largest groundwater source, spanning from South Dakota down to Texas. All of their proposed routes have run through both of these crucially delicate regions. Most of this area was travelled for the Commission’s reports, and the Public Service Commission ordered geological testing to rate plots based on soil types. A majority of land in many of the counties to be crossed by the KXL have been rated as having extremely porous soil; thus, water or anything else spilled onto it goes right through the ground into the groundwater below.
What is it carrying? Why all the talk of “imminent” danger?
The Keystone XL would not carry low-grade crude oil. It would carry tar sands oil—bitumen that needs to be superheated, diluted with an array of extremely toxic chemicals like benzene, and sent, by their own assessor’s report, at nearly 1500 PSI through a single-layered pipeline coming from the tar sands oil fields in Alberta to the 100% Saudi-owned Motiva Refinery in Texas. The Company’s reasoning behind the single layer instead of two? It would be easier to detect a leak if one were to occur. This pipeline’s path just as well would be traveling directly over one of the few areas of the Ogallala Aquifer that underlies 174,000 square miles of the US spread across 8 states. The aquifer’s groundwater sources are replenished due to the extremely porous soils that in large part lie in the Nebraska Sand Hills. Nebraska specifically is almost entirely on top of the Aquifer, which is the largest groundwater source in the US. This makes us both very lucky, and in desperate need to take action to prevent damage that could further harm not just our communities but those of all around us.
As dangerous as a crude oil spill may be, it doesn’t even start to compare to the level of danger of the diluted bitumen (referred to as dilbit) in tar sands oil. Looking back to the Talmadge Creek-Kalamazoo spills in Michigan in 2010, we saw very clearly what the aftermath of what a tar sands oil pipeline can do to a community and the ecosystem after a spill. Years later, this spill has still not fully been cleaned up because aside from the company trying to cover up the spill, dilbit sinks in water. To clarify, the bitumen sinks; the diluting agents, vicious chemicals such as benzene and toluene are soluble in water. Therefore, after the poisons mix with the water, the rest of the oil will sink to the bottom of wherever it is, to sit. This bodes exceptionally badly for groundwater sources because by all verifiable sources say there is no real way to safely remove the dilbit from the groundwater if there was a spill, and no real plan of action other than to condemn the wells.
How easy is it to clean up?
Impossible, in this case, and no one disputes that. If there was a spill, all the state agencies’ directives say that all wells and properties downstream from it need to be condemned. Even without the spill, if the tar sands pipeline crosses your property, the bank will likely ask for you to repay your loans and debts immediately because they will refuse to hold any assets with hazardous materials crossing; this exact case is occurring even now. Same goes with trying to sell the property: no one will want to buy property with hazardous material crossing it where they have to live without full use of land that already has a lifetime easement associated with it, with no recourse to counter the terms. What makes it even more mortifying is that everyone acknowledges that a spill could mean deaths, cancer, seizures, and tumors for those who were exposed to these poisons; and we know that this route would put hundreds of waterways and miles of direct paths through and over the aquifer in the “downstream” of this pipeline if ever it did rupture, but these issues are the only things we aren’t allowed to argue. John Bolenbaugh, a former Enbridge employee, showed us during the Talmadge Creek-Kalamazoo River spill in 2010 that the pipeline companies realize how difficult it is to clean up a spill, which is why they tried instead to cover up the spill and its aftereffects because it was easier to pay people off than it was to actually fix it. After multiple cleanups and over a billion dollars spent, there is still dilbit in the waterways of Michigan from the same tar sands oil fields in Alberta, just a different face trying to sell the community a pipeline they don’t need. Bolenbaugh personally had family, friends, and pets die as a result of the Kalamazoo spill, as did many other people in Michigan; and here people thought Flint had the worst of it.
Given all the possible side-effects of a spill, why are we still considering this pipeline?
Because the new administration is very supportive of the petroleum industry, and because Nebraska legislators took this into their own hands when they passed the Major Oil Pipeline Siting Act (MOPSA), which specifically prohibited the evaluation of safety considerations such as leaks or spills when evaluating oil pipelines in the state of Nebraska. If you are the sole entity to determine how something is in public interest to Nebraskans, how can something as basic as safety not be considered? Do we trust the pipeline companies when they say these things will be safe? If nothing else, the Talmadge Creek/Kalamazoo River spill in 2010 should be a testament to how flawed that logic is. The debate over whether this was safe was too dangerous for TransCanada to be debated, because it was obvious there was no way to imply it was safe. Therefore, safety considerations were physically removed from the list of items on which the PSC can base their decision.
“The Siting Act specifically prohibits the Commission from evaluating safety considerations, including the risk or impact of spills or leaks from the major oil pipeline.”
A sheet with this very same information was distributed by the Commission at every public hearing that they held regarding the KXL decision, just to warn everyone beforehand how little public health mattered to this commission.
What are the incentives to the State?
According to the documentation released during the hearings, less than 40 total non-temporary jobs will be created for Nebraskans by finishing the KXL Project, and a purported $11.8 million in property taxes will be generated yearly by the creation of this pipeline. Digging a little deeper, you will find that even these numbers are most likely too generous, as TransCanada has not paid anywhere near the supposed tax revenue due on their other pipelines based on pre-build numbers; and the revenue is only set to go down in the coming years. Aside from that, I could not find one specific source to validate any of these numbers in the first place. All of the Commission documents from the Department of Revenue say that there is no way to accurately gauge what the actual return to the state from taxes on the pipeline will create. Another fun anecdote that came up during the hearings was that if the project is approved there are tax loopholes in the state of Nebraska that would allow TransCanada to avoid paying taxes for the first 10 years, which would likely be most of the life of the pipeline. There is literally no incentive for Nebraskans for the creation of this pipeline other than for those whose money is already invested in it. It’s an export pipeline, heading to a Saudi-owned refinery to be shipped overseas. The Domina Law Group validated this by flowing the arguments unrebutted that the financial incentives were not as they seem with the project; this Pipeline would cost farmers more in lost revenue than would be gained by its’ creation in state revenue, and the amount of jobs purported from the project was grossly overexaggerated.
What can we do to stop this?
By this point in time, all of the hearings have passed. We are just waiting for the final decision to come out of the currently deliberating Public Service Commission of Nebraska. The last hearings held were the Legal Intervenor Hearings on August 7-11, 2017. Those hearings ended a day early for the sake of “expediency” for the commission. Also for the sake of “expediency” they forced the Ponca and Yankton Sioux tribes to give one joint statement and forced large organizations like the Sierra Club, Bold, and Homeowners in Nebraska to all do the same. This gave the Unions and TC an easier time to try and join together on the economic side without having to worry about too much information being added to the argument.
The Public Service Commission currently overseeing this will have two seats at large next year. Commissioner Landis from District #1 (Lincoln and SE Nebraska) as well as the Chairman, Commissioner Schram from District #3, will both be up for re-election. Environmentally conscious Nebraskans need to get into regulatory commissions like this to prevent infrastructure like the KXL from ever entering the state. If you live in any of these areas or those being crossed, look up your local regulators, look to see what positions can be filled, and be aware of who is filling them.
Between the last public hearing we had and the intervenor hearing, a new Executive Director was chosen for the PSC without any real public notification or explanation as to what his role would be in the current hearings process. Mike Hybl had at one time been the Executive Director for the Public Service Commission, before leaving to become chief of staff for US Sen. Deb Fischer (R-NE), who is no stranger to the oil/gas industry. Hybl took the ED job at the Nebraska PSC after it had been vacated early in the year, when the previous Director resigned to keep his job working for one of the industries he regulated.
It now looks as though the easements will be approved, and we need to be aware of what to do. If the pipeline is approved, that doesn’t mean the fight is over. The local Natural Resource Districts (NRDs) and the regulatory agencies have to have a permit when there is building through water sources, or if they are used for electrostatic testing, as well as when they will need to actually just use the water. In that way, we can stall this process until we have found other options. There are people going as far as to build solar panels along the current path so that if the state really wants to build the pipeline, they will have to do it at the expense of existing energy infrastructure—specifically, green energy.
The Domina Law Group submitted a copy of their closing arguments and a final statement on Sept. 15th, stating, “Burden of Proof” means an obligation of a party to introduce evidence that persuades the factfinder, to a requisite degree of belief, that a particular proposition of fact is true. TransCanada misrepresented the situation in front of us, and still has not met the burden of proof necessary to prove this project is in the Public Interest of Nebraskans.
The Final Deadline for a Decision on whether the easements will be granted and with what terms is November 23, 2017. The Nebraska Public Service Commission are currently the only regulators who can stop the pipeline or adjust the terms of the extremely one-sided perpetual easements. Especially given the world as it is today with hurricanes, earthquakes, and tornadoes, all being exacerbated by the abuse of non-renewable resources, it really makes no sense to work for anything short of green energy.
Regardless of the decision, it should be noted that Nebraskans will not let the Keystone XL pipeline be built. This isn’t something that can be ignored at this point. They are seriously considering poisoning a large swath of middle America for corporate profit, and no one is batting an eye because no one other than those involved knows what real danger we are in.
Watch how this struggle worked out in Michigan:
Be aware of what we need to do here.
Make it known this is going on; don’t let them keep it under the radar and keep an eye out for updates on Real Progressives!
Or via the Public Service Commission Site Directly http://www.psc.nebraska.gov/natgas/Keystone_Pipeline.html