Air Date: Week of November 23, 2018

A group of Keystone protestors from 2014. If the Trump Administration wants to see the Keystone XL Pipeline built, its approval will only come after a thorough review of its potential environmental impacts. (Photo: Joe Brusky, Flickr CC BY-NC 2.0)

A year and a half after President Trump reversed an Obama Administration decision to block TransCanada’s Keystone XL pipeline, a federal judge has halted the project again, saying the environmental review of the project is insufficient. Vermont Law School Professor Pat Parenteau tells Host Steve Curwood about the decision and what this means for the controversial pipeline’s future. They also discuss recent pre-trial developments in the Juliana v. U.S. case, brought by young plaintiffs who seek to compel the government to protect the climate of this planet they will inherit.

Transcript

CURWOOD: From PRI and the Jennifer and Ted Stanley Studios at the University of Massachusetts Boston, this is Living on Earth. I’m Steve Curwood.

We have two major environmental cases on tap for our broadcast today. The US Supreme Court recently refused to block a trial for Juliana v the United States, a potentially monumental case brought by young people that seeks to require the federal government to provide a livable climate in the future. The way forward is still unclear for that case, and we’ll have more about it in a few minutes. But first we turn to a ruling by a federal district judge in Montana that blocks the Keystone XL pipeline unless and until a better environmental impact assessment is made. Here to discuss is Vermont Law School Professor Pat Parenteau joining us from Ireland – Welcome to Living On Earth, Pat!

PARENTEAU: Thanks, Steve. Good to be here.

CURWOOD: So, tell me, exactly what did the judge decide in this ruling on Keystone XL?

PARENTEAU: Well, his main ruling was that the Trump administration completely disregarded the climate effects of building the Keystone pipeline. It's just another major infrastructure investment, of course, in fossil fuels. And the Trump administration dismissed the whole idea that it would be contributing to climate change with barely a paragraph in the decision document that they issued. And the judge said that's not good enough, you really do have to take account of the growing body of science that we all know. And you have to explain why it makes sense, given that, to authorize yet another major piece of infrastructure that will take 40 years to pay off.

CURWOOD: Now, as I understand it, Pat, when the request was first put in for a Keystone XL, there were different economics than today, how did those play into the judge's decision?

PARENTEAU: Yes, in the earlier round - and this, of course, it was actually during the Obama administration - the state department concluded that one way or another, given the price of oil, Keystone Pipeline, the oil was going to get to the market one way or another, either through the pipeline or through rail transport. And therefore, the state department concluded it really doesn't matter whether we approve this pipeline or not, in terms of climate change. What's changed, of course, from that is that oil prices have declined significantly, have not rebounded. And now, the conclusion of marketers and economists is that without the pipeline, this heavy crude oil from Canada would not get to the markets.

CURWOOD: Now, to what extent, Pat, were you surprised by federal judge Brian Morris' decision in this case? What's his reputation?

PARENTEAU: Well, he's a former Supreme Court judge on the Montana Supreme Court. His profile is a very moderate judge, he's hardly a radical environmentalist. There are some judges on the federal bench who are more pro-environment. Judge Malloy, in Montana, has issued a number of very, I would say, favorable decisions from an environmental standpoint, but Judge Morris isn’t in that same category. He is definitely a moderate.

CURWOOD: So, the Indigenous Rights Network and the other advocates who are plaintiffs in this case see this as good news. How bad is this news for Trans Canada, the company behind the construction of the pipeline?

PARENTEAU: You kind of wonder if it's true that the market for this oil has gotten really weak, you kind of wonder if maybe they aren't doing Trans Canada a favor by giving them a chance to rethink whether it makes sense to continue with this, at least at this point in time. I can't answer that question. I'm not an expert enough on the oil market to judge, but it's interesting that we haven't heard a huge outcry yet.

CURWOOD: So, in other words, you're saying that Trans Canada may have, may see this as a blessing in disguise, that instead of running up its debt tab to build this thing out, they can back away from it and tell their investors and friends, well, the court made us do it.

PARENTEAU: At least it gives them that opportunity to rethink this. I'm not speaking for them, obviously, they may go forward, but they've got a chance to rethink it.

CURWOOD: Now, along with the changing economics, I gather that the plaintiffs and both the judge cited other issues, such as the risk of spills. And of course, what would happen to cultural resources. What were the findings?

PARENTEAU: Yes, there's been so many episodes of spills of pipelines. And in fact, recently, a report came out showing all the explosions that have occurred at pipelines, over 100, within the last couple of years, I think, is the timeframe they were looking at. These kinds of infrastructure, you know, they have problems for sure. And the Indigenous Rights Network is concerned, because these pipelines run through, of course, a lot of what we call “Indian country” where native people still have a large number of burial sites, archaeological resources, cultural resources. And just like the DAPL case, the Dakota Access Pipeline, the tribes are insisting on greater respect, and higher level of security, and a higher level of maintenance monitoring on these pipelines, what kinds of contingency plans do you have in place to respond quickly to spills. They're pushing hard for much tighter regulation of the pipelines than historically we've seen.

CURWOOD: So what happens now? I mean, how long would the environmental impact statement take, do you think?

PARENTEAU: You know, typically, it takes a year, just because the wheels of government tend to move as slowly as they do. I suppose you could do it faster than that, if you put it on some kind of a fast track, but I think we're looking at least a year's worth of extra work before another supplemental EIS, environmental impact statement, is done, the public has given a chance to comment and then another decision is made. So, I think it's going to be a considerable period of time before we know what the fate of KXL really is.

CURWOOD: Pat, it's hard to overstate the symbolism of Keystone XL Pipeline for pipeline opponents. I mean, people went and marched at the White House, went to jail. To what extent do you think that that could be part of the reason that the Trump administration decided to resurrect this fight now?

PARENTEAU: Well, that's a good point. The Trump administration seems to like these high profile fights. They look for them. They seem to like giving the environmental community a black eye, and what they perceive to be, I suppose, is liberal democrats that have stated their opposition, including Nancy Pelosi has gone on record as opposed to Keystone Pipeline in the past. So, you know, this is the kind of fight that Trump seems to like, and so far, it's when he's not winning. But of course, that's never stopped him from claiming victory anyway.

CURWOOD: All right. Professor Parenteau, your crystal ball. Keystone XL ever gets built, do you think?

PARENTEAU: I don't think so. It just looks to me like we've been dealing with this issue now for how long, it seems like eight years or more. And it feels to me, and it’s just a feeling, that history is against this pipeline. It feels to me like it's a turning point. And so we'll see.

CURWOOD: Alright, Pat. Thanks. Now, let's talk about this other case. This is the Juliana v. the United States, where essentially kids are suing, saying that the government needs to move to help assure them a livable climate in the future years ahead. This case has been delayed by the federal government many, many times. How many times now has it gone up to the Supreme Court where the Supreme Court says no, no, no, you do have to let this go ahead.

PARENTEAU: Well, let's see, initially, Justice Kennedy, when he was still on the court denied a request to stay the case. Then the government went back to the Supreme Court and got Chief Justice Roberts to issue a temporary stay on the case. And then Justice Roberts convened the full court to decide whether they should continue the stay of the trial. And the full court voted actually 6 to 2 not to do that, but also suggested that the Ninth Circuit take another look at whether the case should proceed. So that's where the case is currently, back in front of the Ninth Circuit. By my count, this is actually four times that the government has asked the Ninth Circuit to stop the trial. And so we're all waiting to see what the Ninth Circuit does with this fourth, and I hope final round, of whether we're going to have a trial or not.

CURWOOD: Why is the plaintiff’s argument so groundbreaking?

PARENTEAU: Well, it's groundbreaking because no court has ever been asked to literally order the federal government to adopt a plan to achieve a science-based strategy for reducing carbon emissions that will stabilize the earth's climate. I mean, that’s just saying, it indicates how novel and extraordinary it is. It's an extraordinary remedy for an extraordinary problem is the way I like to put it. But the plaintiffs are saying to the courts, to the Supreme Court, the Ninth Circuit, let us build a record for you and give you the benefit of some really high-quality evidence. They've got an all-star cast of scientists and economists lined up ready to go, let us build a solid record and then you can make a decision, and if your decision, fully informed, is that we have no case and there is no remedy for the problems that we're presenting, so be it. But don't try to make a decision in the abstract.

CURWOOD: This case, Juliana v. the United States, was filed back in 2015. That was before we had Hurricanes Maria, Harvey, Irma. Before we had really, almost a firestorm in California that recently killed a record number of people, before the climate really started biting back in such a hard way. How might the news of climate disruption these days affect how this case moves forward?

PARENTEAU: It should. I mean, 2017, according to the latest data from National Oceanic and Atmospheric Administration, was the most destructive hurricane season on record. It wasn't necessarily the most destructive hurricanes, but the economic damage was the highest ever in the history of the United States. And the fact that these storms are more intense that they're amplified by global warming and climate change is clear. So, therefore, for a court to say, even in the face of that kind of mounting evidence of clear, unmistakable, and even horrific damage and loss of life, to say that there's no remedy it strikes me that a thoughtful judge would hesitate to write an opinion like that. That's what the hope is, that the light will go on, in the court, and at least some type of decision that moves the needle in the direction it needs to go happens.

CURWOOD: Pat Parenteau is currently a Fulbright fellow and a Professor at Vermont Law School. Thanks, Pat, for taking the time today.

PARENTEAU: Thank you, Steve.

 

Links

The Guardian | "Keystone XL pipeline: judge rules government 'jumped the gun' and orders halt"

Our Children’s Trust (Juliana Plaintiffs) November 21, 2018 statement on pretrial maneuvers

Pat Parenteau Faculty Bio

Vox | “A major climate change lawsuit is on hold. Again.”