Construction crews clear earth and dig trenches April 14, 2020, for a section of the Keystone XL pipeline that will cross the Canadian border into Credit: A.J. Etherington

The Northern Plains Resource Council and Sierra Club have appealed a decision by the state of Montana that’s required in order for Keystone XL construction to move forward on its 295-mile route through eastern Montana.

The decision they’re challenging is part of a regulatory measure requiring state approval of projects — like pipeline construction — that fall under the Clean Water Act’s jurisdiction. South Dakota and Nebraska have already granted Water Quality Certificates for Keystone XL, a massive pipeline that would move 800,000 barrels of oil a day from the Alberta tar sands to the Gulf Coast. Montana joined them on Dec. 31, but that decision has been challenged in the appeal filed by the conservation groups on Jan. 4.

The groups argue that the Montana Department of Environmental Quality failed to conduct adequate analysis of the project in its entirety, including upland water quality impacts from pipeline operation and spills, the overall project footprint and the cumulative effects of having multiple water crossings in close proximity. The project would cross 201 bodies of water in the state.

“You cut up a bunch of wetlands [and it’s] death by a thousand cuts, they’re not going to function after the pipe has been put in the ground,” said attorney Guy Alsentzer, who represented the conservation groups in the appeal. “These are the types of cumulative impacts that also need to be assessed.”

Sierra Club and Northern Plains Resource Council also say the agency “rushed” to reach a decision and didn’t fully consider less environmentally degrading alternatives to the plan submitted by TC Energy (formerly TransCanada Corporation).

Alsentzer said such alternatives include broader implementation of horizontal directional drilling, a process by which pipeline is buried far enough underground that waterways are protected in the event of a leak or spill.

He also said the public was denied its right to engage in meaningful participation. The DEQ itself has “blatantly” admitted it didn’t review all the comments submitted on the project prior to its issuance of the Water Quality Certificate, he said.

According to a late-December DEQ press release announcing the agency’s approval of the  Water Quality Certificate, the agency twice asked the U.S. Army Corps of Engineers for extensions to continue reviewing the more than 650 comments it received, but even with the extensions, it still didn’t have enough time to go through all of them in the time allotted.

“Despite multiple extension requests from DEQ, the U.S. Army Corps of Engineers imposed timeline restrictions that cut short the one-year review. Consequently, DEQ was not able to consider and respond to all of the comments as required under state law before having to issue the certification,” DEQ’s release read.

“You cut up a bunch of wetlands [and it’s] death by a thousand cuts, they’re not going to function after the pipe has been put in the ground. These are the types of cumulative impacts that also need to be assessed.”

attorney Guy Alsentzer

“That’s really troubling because this is such a consequential project,” Alsentzer said, citing concerns about both Montana’s waterways and the cumulative climate change impacts of facilitating transport of oil from Alberta’s tar sands, which has a greater “wells to wheels” carbon impact than regular crude oil.

Before the petitioners can be heard in state court, they must first make their case to the state Board of Environmental Review, a quasi-judicial body.

If the board of review sides with the conservation groups, the DEQ will have to restart the certification process from scratch. If the board supports DEQ’s issuance of the certificate, the conservation groups will have the option to appeal the decision through Montana’s court system.

Opponents of the appeal say it’s premature, given DEQ’s ability to place additional conditions on the certificate as it continues to review public comments. They also say the timing doesn’t make sense, since terms ended for several members of the Board of Review on Jan. 1, and their replacements have not yet been named by newly elected Gov. Greg Gianforte.

“It’s a lame duck Board of Review,” said Montana Petroleum Association Executive Director Alan Olson, who was among the advisers who helped Gianforte pick new directors for DEQ and the Department of Natural Resources and Conservation. “It doesn’t make sense to appeal at this time, until the board is in place.”

Keystone XL supporters also say the pipeline is safe and less impactful to the environment than other means of transporting oil, and that its construction could create a significant economic boost for individual communities and the U.S. more broadly speaking.

Olson pointed out that Bozeman-based Barnard Construction Company is one of the “main contractors” on the project.

Keystone XL proponents also say pipeline safety looks different now than it used to. 

“Modern pipelines like Keystone are highly protective of the environment and the safest way to transport oil,” said Kathleen Sgamma, president of industry advocacy group Western Energy Alliance, in an email to Montana Free Press. “These groups attempting to shut down pipelines to further a Keep-It-In-the-Ground agenda only succeed in shifting to less protective transportation such as rail or imports from overseas, both of which involve more impact on the environment than pipelines.”

In an email to MTFP, Sara Rabern, a spokesperson for TC Energy, wrote that “the project will be a key component of a much needed refocus on U.S. infrastructure investment while also producing thousands of well-paying jobs and substantial economic benefit to local communities and U.S. GDP.”

According to a 2017 story by the New York Times, a U.S. State Department report found that Keystone XL would support 42,000 temporary jobs in the U.S. for two years. About 3,900 would be in construction, and the others would be in indirect support roles like food service. Permanent jobs number far fewer, about 35. A 2012 Supplemental Environmental Impact Statement filed for the project put the number of jobs created during construction at about 3,600 for Montana residents. The report notes that the “time period for realizing all effects is uncertain.” 

Although there is a long record of legal challenges to Keystone XL — including one the Sierra Club filed last July over the pipeline’s planned construction through Bureau of Land Management land in Montana — the current appeal could have outsized significance.

“It’s David versus Goliath,” said Glendive farmer and Northern Plains Resource Council member Dena Hoff. “It’s only stopped because there are people who really care … people who care about the seventh generation, people who care about their Indigenous neighbors, people who care about the land, water and air.”

Alsentzer said he expects the Board of Environmental Review to make a decision on the appeal within the next six to nine months. As long as the appeal is pending, TC Energy can’t move forward with pipeline construction in Montana, he said.

Another question hanging over the project is President-elect Joe Biden’s plans for Keystone XL. Based on his record as vice president from 2009 to 2017 and statements made by his policy advisers during his campaign for president, environmentalists are optimistic that the presidential cross-border permit that was granted by President Donald Trump in 2017 will be rescinded via executive action by Biden, effectively killing the project.

We expect Biden to reverse the cross-border permit,” said Doug Hayes, a senior attorney with the Sierra Club who has worked on the Keystone XL issue since 2009. “He’s pledged to do it, and I think there are a lot of people and groups around the country that are anxiously awaiting that action.”

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Billings native Amanda Eggert covers environmental issues for MTFP. Amanda is a graduate of the University of Montana School of Journalism who has written for Outside magazine and Outlaw Partners. At Outlaw Partners she led coverage for the biweekly newspaper Explore Big Sky. Contact Amanda at aeggert@montanafreepress.org.