Attorney General James Takes Legal Action Challenging Permit for Keystone XL Pipeline 

NEW YORK – New York Attorney General Letitia James joined a coalition of 12 attorneys general in filing an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the challenge by environmental groups to the Keystone XL Pipeline. The Keystone XL Pipeline relies on Nationwide Permit 12, which broadly authorizes the construction of oil and gas pipelines across bodies of water. The coalition argues that a recent determination by the United States Army Corps of Engineers (Corps) to reauthorize Nationwide Permit 12 is invalid because the Corps failed to engage in statutorily required programmatic consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act (ESA) before reissuing the permit. 

“Oil and gas pipelines can pollute waters and destroy valuable wildlife habitat, with especially tragic consequences for threatened or endangered species,” said Attorney General James. “The Corps’ failure to consult with federal wildlife agencies on its nationwide pipeline permit will greenlight destructive construction projects and put at-risk wildlife species in grave jeopardy. I will work with my fellow attorneys general from throughout the country to force the Corps to fully comply with all of its legal obligations to protect our environment.”       

The Keystone XL Pipeline is an expansion to an existing pipeline system that would transport up to 830,000 barrels per day of crude oil from Alberta, Canada, and the Bakken shale formation in Montana to existing pipeline facilities near Steele City, Nebraska. The crude oil transported would come from oil sands operations, the extraction of which is particularly energy intensive. The pipeline would also cross nearly one thousand bodies of water, causing significant impacts to water quality, habitat, and endangered species. 

Nationwide Permit 12 expedites the approval of “the construction, maintenance, repair, and removal of utility lines [including oil and gas pipelines] and associated facilities” in waters of the United States, without requiring an applicant to seek an individual permit under the federal Clean Water Act. In most cases, projects utilizing Nationwide Permit 12 may be constructed without further action by, or notification to, the Corps. In other words, Nationwide Permit 12 all but assures that pipelines will be covered by the general permit despite extensive environmental impacts to listed species. However, in reauthorizing Nationwide Permit 12, the Corps bypassed the Endangered Species Act’s formal consultation process, in violation of the law. A federal district court in Montana issued a ruling earlier this year finding that the Corps had violated the act and vacated the nationwide permit. The pipeline company has appealed that decision to the Ninth Circuit. 

Enacted under the Nixon Administration in 1973, the Endangered Species Act is intended “to halt and reverse the trend toward species extinction, whatever the cost.” Section 7 of the Endangered Species Act requires a federal agency to engage in formal consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service when a proposed federal action “may affect a listed species or critical habitat.” In the amicus brief, the attorneys general argue that the reauthorization of Nationwide Permit 12, on which the Keystone Pipeline relies, is invalid because the Corps failed to consult with federal wildlife agencies regarding the impacts that the permit might have on federally listed endangered and threatened species, as required by Section 7.  

“The cumulative environmental impacts — including harms to endangered species — of pipeline projects like Keystone XL must be fully scrutinized,” said Peter Iwanowicz, executive director, Environmental Advocates NY. “And, with 2020 likely to be the hottest year on record, it’s clear that the climate crisis is racing ahead. In order to have any shot of averting the most dire impacts of a changing climate, we must do everything we can to stop the extraction and transportation of these dirty fuels. We commend Attorney General James for her work in this regard and for supporting the plaintiffs in this case.” 

In filing this amicus brief, Attorney General James joins the attorneys general of California, Connecticut, Delaware, Maryland, Massachusetts New Mexico, New Jersey, Oregon, Rhode Island, Vermont, and Washington. 

This case was handled by Assistant Attorney General Laura Mirman-Heslin, 
Senior Counsel Michael J. Myers, and Bureau Chief Lemuel M. Srolovic of Attorney General James’ Environmental Protection Bureau, as well as Deputy Solicitor General Andrea Oser and Solicitor General Barbara D. Underwood of Attorney General James’s Division of Appeals and Opinions. This matter was overseen by Deputy Attorney General Jennifer Levy.