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Crude combat

Enviros seek leverage to curb Canadian tar sands development


updated Aug. 19

From the southern tip of Charron Lake, Highway 63 winds a couple hundred miles north through boreal forest to the epicenter of Canada's oil boom: the tar sands mines of north-central Alberta, where 1.49 million barrels of crude were produced daily last year.

These aren't your average oil fields: They harbor not oil, but a viscous substance called bitumen, which is converted into synthetic crude, and eventually gasoline, through a water- and energy-intensive process. The wellhead-to-gas-tank greenhouse gas emissions of tar sands oil are about 82 percent greater than conventional crude, according to the Environmental Protection Agency, and up to four tons of earth are moved for every barrel produced. In the process, tracts of one of the world's largest intact forests are razed, wetlands drained and the landscape perforated by toxic wastewater ponds.

When Highway 63 was constructed in the '70s, it was among the nascent industry's only real lifelines. In the last 10 years, though, tar sands production has more than doubled, mostly to serve the U.S. market, and traffic is booming. The two-lane is one of Alberta's busiest and most treacherous roads, earning it nicknames like Hell's Highway and Suicide 63. And with production expected to double again in the next decade, it's just one artery in a network of truck routes, pipelines and refineries that must expand on both sides of the border to meet increasing demand for Canadian crude.

TransCanada's proposed Keystone XL pipeline, for example, would nearly double the amount of tar sands crude flowing to the U.S., funneling up to 900,000 barrels a day through Montana, the Dakotas, Nebraska, Kansas, Oklahoma and Texas to Gulf Coast refineries, giving the landlocked industry access to ocean ports and international markets. Imperial Oil is already revamping roads in Idaho and Montana to truck massive equipment to its Alberta mines. And new refineries are planned in North and South Dakota specifically to process tar sands crude.

Projects like these "are feeding a very big transformation," says Josh Mogerman, a spokesman for the Natural Resources Defense Council -- one U.S. environmentalists want to delay or stop altogether. And with federal climate policy still out of reach, opposing infrastructure development in the U.S. is one of the few ways they can use existing legal channels to check the industry's growth.

In July, NRDC, Earthjustice, the Sierra Club, National Wildlife Federation, the Western Organization of Resource Councils and Plains Justice asked the State Department -- which is responsible for permitting Keystone XL since it crosses the international border -- to redo its draft environmental impact statement for the project. They cited inadequate analysis of local impacts, including risks to Montana's Yellowstone River and the Ogallala aquifer, the water source for much of the Great Plains, in event of a spill. But their real beef is with the environmental destruction and carbon emissions the pipeline will enable in Canada, and the U.S. government's refusal to consider them at all.

U.S. agencies are supposed to look at climate impacts when reviewing projects, but there's still no definitive guidance on how far-reaching analysis should be. So environmentalists are increasingly testing existing laws' abilities to deal with climate change case-by-case in court. Just last month, a new lawsuit charged that a Wyoming coal tract was leased illegally because no comprehensive climate analysis was done.

There's some case law to support such claims. In 2003, a federal court in Minnesota threw out the government's environmental analysis of a rail line connecting Midwestern power plants to Powder River Basin coal mines in Wyoming because it didn't consider the effects of burning coal or increased production at the mines, both likely outcomes of the line.

See a sidebar to this story, "Monstertruck alley."

But Keystone XL's international route makes challenging it more complicated. The State Department says environmental impacts in Canada aren't within its jurisdiction, and the courts may agree. "(They) usually don't apply the National Environmental Policy Act (NEPA) to activities in other countries," says Dan Farber, an environmental law professor at the University of California-Berkeley. "On the other hand, climate change might be different because the ultimate harm will involve the U.S. environment."

At least one federal court has required that cross-border emissions be considered. In 2003, a U.S. District Court in California said transmission lines running into the state from Mexican natural gas plants were permitted illegally because the environmental analysis didn't consider the impacts of carbon and ammonia emissions from generating the electricity in Mexico.

Still, so far environmentalists haven't been successful in stopping or forcing new environmental reviews for two tar sands pipelines that were permitted, one under President Bush and the other under Obama.

Will this time be any different? Maybe. The permitting decision hinges on whether the State Department deems the project in the "national interest," but there are no set criteria for making that call. "Every pipeline is a whole new game," says Susan Casey-Lefkowitz, director of international programs for NRDC.

While the legal context hasn't changed much since the last pipeline was permitted, the political landscape may have. House Committee on Energy and Commerce chair Henry Waxman, D-Calif., recently wrote a 10-page letter chiding the State Department for ignoring the project's "most significant environmental impacts" -- those in Canada. And EPA's comments on the draft EIS last month echoed environmentalists' cross-border concerns. Full disclosure of the pipeline's impacts must include "extraction-related greenhouse gas emissions," the agency scolded -- an approach consistent with climate guidelines drafted this year by the Council on Environmental Quality, which oversees NEPA's implementation.

In response, the State Department has delayed its decision while it consults other agencies. That's far from a sure sign that it will deny TransCanada its Gulf Coast ambitions -- the draft EIS more or less dismisses that option, and the department has favored energy security over environmental protection in the past. But State's hedge is evidence that the opposition to Keystone XL isn't just token.

The Albertan government is taking it seriously. It touted the virtues of the tar sands and what would be the industry's biggest pipeline in a $55,800 Washington Post ad this summer, a not-so-subtle reminder that the American oil habit is far from kicked. "A good neighbour lends you a cup of sugar," the ad began. "A great neighbour supplies you with 1.4 million barrels of oil per day."

See a sidebar to this story, "Monstertruck alley."