Thursday, May 23, 2019

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9th Circuit federal judge rules against TransCanada


Ruling upholds injunction, a win for CRST says Chairman Frazier

A March 15 court ruling by the 9th Circuit Court of Appeals against TransCanada is proclaimed as a win by tribal nations and environmental protectors throughout the Great Plains region. In yet another blow, the energy corporation lost its bid to lift an injunction which blocked construction and some pre-construction of the Keystone XL Pipeline.

The ruling is yet another setback of the embattled and highly controversial pipeline. The Cheyenne River Sioux Tribe has long maintained its opposition to the proposed pipeline, stating that the pipeline would cross Great Sioux Nation treaty territory without the tribe’s consent. The pipeline would also cross the Moreau and Cheyenne Rivers, endangering the tribe’s drinking water sources.

Other points of contention are the increased rates of violence and crimes which correlate with the influx of transient workers who take up residence at oil man camps. CRST often cites alarming statistics of missing and murdered indigenous women and the epidemic rates of violence against native women as reasons to oppose man camps, especially those within treaty territories and within close proximity of the reservation boundaries.

“In a time when we are talking about how often our Indian women disappear, the pipeline and consequent man camps exacerbate the chances of our Indian women becoming missing or murdered,” said CRST Intergovernmental Affairs Coordinator Remi Bald Eagle.

Last November, the tribe lauded a Montana court ruling when U.S. District Court Judge Brian Morris ruled that the Trump administration had failed to conduct a necessary environmental review and failed to provide justification for reversing former President Obama’s 2015 denial of the pipeline permit when President Trump signed executive actions in 2017, which greenlighted the project.

Morris also stated that the U.S. State Department, which analyzed the project, “simply disregarded” information and factors such as climate change, global warming, oil spill risks, and oil prices.

“The department’s 2017 conclusory analysis that climate-related impacts from Keystone subsequently would prove inconsequential and its corresponding reliance on this conclusion as a centerpiece of its policy change required the department to provide a ‘reasoned explanation’. The department instead simply discarded prior factual findings related to climate change to support its course reversal,” wrote Judge Morris in his 54-page order.

Morris then issued an injunction prohibiting construction and pre-construction activities of the Keystone XL pipeline.

In December, TransCanada appealed Morris’ ruling to the 9th U.S. Circuit Court of Appeals, arguing that the order to block construction should be stayed while the appeal was pending.

A ruling of that appeal came on Friday, March 15, in which the court upheld Morris’ ruling and left the injunction in place, essentially blocking construction and pre-construction activities of the pipeline.

According to an MSN report, in an affidavit, TransCanada Senior Vice President of Technical Centre and Liquid Project Norrie Ramsay wrote that construction delays beyond March 15 this year would push the project completion date back an entire year and would cost the company hundreds of millions of dollars.

“A one-year delay in the construction schedule would impose very significant consequences on TransCanada…. Result in lost earnings before interest, taxes, depreciation and amortization (EBITDA) of approximately $949 million US between March 2021 and March 2022, based on the minimum take-or-pay shipper commitment,” wrote Ramsay.

The report also stated that since Morris’ ruling last year, the corporation has laid off about 650 contract workers who were onboard to complete pre-construction projects.

It is highly likely these projects included pipe yards located near Bridger and Marcus, and may have included construction of man camps in Opal and Philip.

Last month, the Keystone Pipeline, not to be confused with the proposed Keystone XL pipeline, leaked over 210,000 gallons of crude oil in St. Charles County, Missouri.

In light of this leak, global warming website, DeSmog, tweeted that leak occurred “in the same Missouri county where inspectors found ‘paper thin’ pipe in 2012.” Indeed, in 2015, DeSmog published an exclusive story not only revealing the alarming rate of corrosion in parts of the Keystone pipeline, it exposed collaboration between the corporation and the federal government to withhold information from the public.

The report included insight from “a former TransCanada pipeline engineer-turned-whistleblower” identified as Evan Vokes.

“It is highly unusual for a pipeline not yet two years old to experience such deep corrosion issues. Something very severe happened that the public needs to know about,” said Vokes.

According to DeSmog, no information was made publicly available by TransCanada or federal agency Pipeline and Hazardous Materials Safety Administration other than citing “possible safety issues” when the pipeline was shut down in 2012.

DeSmog also reported that it took 18 months for PHMSA to respond to a Freedom of Information Act request, and when finally released, only partial information was provided.

This information included an email which they wrote “suggests Ken Crowl, a representative of TransCanada, sent an email to PHSMA stating he would provide the agency with ‘the media talking points’ about what the parties had discussed.”

The report also indicates that “the two entities compared notes before sharing information with the public.”

Last week’s ruling was widely lauded by opponents of the pipeline, including renowned activist, Indigenous Environmental Network Frontline Community Organizer, and CRST tribal member Joye Braun.

“This is a big step toward shutting this zombie pipeline down, once and for all. The indigenous nations from the Tar Sands in Canada to all of the Oceti Sakowin, Ponca, Omaha, Winnebago, and countless other tribes across Turtle Island, standing in solidarity to shut this monstrosity down, once and for all. The decision to keep in place preconstruction sanctions is so very important. It’s a good, big step,” said Braun.

CRST Chairman Harold Frazier said that the court’s ruling was a victory for the tribe and expressed appreciation of the court’s decision to uphold Judge Morris’ ruling to halt construction of the pipeline.

“I am happy that the federal court has upheld the decision to stop this pipeline. It is a testament to how just our cause is and it’s also a testament as to how TransCanada has lost the confidence of the court to operate fairly and with full disclosure. But the fight is far from over,” said Frazier.