Attorney General Tong Files Amicus Brief in Support of Lawsuit Challenging Permit for Keystone XL Pipeline

December 23, 2020 – Attorney General William Tong today 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 environmental groups’ challenge 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. However, the coalition argues that Nationwide Permit 12 is invalid as the U.S. Army Corps of Engineers (Corps) was required to engage in programmatic consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service under the Endangered Species Act (ESA) before reissuing the permit.

“The U.S. Army Corps of Engineers failed to consult with federal wildlife agencies about the impact this project would have on endangered species and because of that, this permit is invalid. We cannot play fast and loose with the Endangered Species Act and issue permits to projects that illegally bypass crucial environmental reviews,” Attorney General Tong said.

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.

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 or 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 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.

Joining Connecticut and California in the amicus brief are Delaware, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

By the Connecticut Attorney General’s Office
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