A U.S. district court in Montana last week ordered a halt to all work on the Keystone XL pipeline, the fossil fuel project that inspired a revival of direct action protest tactics across the U.S.
The decision came at the end of an election week in which Democrats took control of the U.S. House of Representatives, promising in the short term to hold climate hearings and in the long term to work toward a “Green New Deal.” Meanwhile, pipeline opponents made electoral gains of their own in local races in South Dakota and Nebraska. But the unwieldy scale of the climate crisis hung heavily over the election results and the limited possibilities they opened up for legislative action. The Keystone XL ruling represented a concrete blow to the fossil fuel industry driving the crisis.
The effort to stop the pipeline has become a touchstone for the U.S. environmental movement, with the fate of the project carrying considerable symbolic and material weight. The trailblazing climate scientist James Hansen famously called the potential completion of the project and the full exploitation of the tar sands “game over for the climate.”
TransCanada’s Keystone XL pipeline would pump 830,000 barrels per day of tar sands oil from Alberta, Canada, to a transfer point in Nebraska. Increasing pipeline capacity, which decreases transportation costs, is key to assuring that the oil, which is expensive to produce, remains commercially viable. When the State Department originally studied the project in 2014, crude oil sold for nearly $100 per barrel; today it sells for around $60. The sludgy tar sands oil is a high carbon-emitting variety that has proven difficult to clean up when it spills into waterways.
The court decision declared illegal one of Donald Trump’s first executive orders, issued days after his inauguration as a signal to fossil fuel opponents and the oil industry that America was moving full speed ahead on oil and gas extraction. Trump’s order reopened and fast-tracked the permit process for KXL, which the Obama administration had denied and ended more than a year before. Barack Obama had argued that the pipeline would undermine the U.S.’s international leadership in addressing the climate crisis.
In his decision, Judge Brian Morris, who was appointed by Obama, emphasized that Trump “simply discarded prior factual findings related to climate change to support its course reversal.” He added, “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past.”
In response, Trump told reporters, “It was a political decision made by a judge. I think it’s a disgrace.” He speculated that the case would go to the 9th U.S. Circuit Court of Appeals. “We’re slowly putting new judges in the 9th Circuit,” he said.
“It’s these moments that fuel and give fire to our resiliency,” said Jade Begay, a spokesperson for the Indigenous Environmental Network, one of the parties to the lawsuit. “We are buying time, but we need to remain strategic and diligent about moving this forward.”
Last week’s court decision requires the Trump administration to perform a new supplemental environmental impact study that takes into account oil prices that have fallen dramatically, updated information about the potential impact of oil spills, and the cumulative greenhouse gas impacts of KXL in combination with another tar sands pipeline, the Alberta Clipper. The study will also have to explain why Trump’s rapid change of course was reasonable and will have to include the results of a new survey of cultural resources potentially located throughout more than 1,000 acres of land.
According to the Indigenous Environmental Network, the survey of cultural resources could be the most time-consuming aspect of the judge’s order, especially if it is done with significant consultation with tribal nations. How many culturally significant sites might be located within the un-surveyed area is unclear. “There are sites out there that we haven’t told people about, because people like to go in and steal stuff and sell it on the black market,” said Joye Braun, a pipeline opponent and member of the Cheyenne River Sioux tribe in South Dakota. And Indigenous leaders may be hesitant to offer information for the purpose of helping a pipeline company they oppose figure out its least controversial pathway, especially considering that such information hasn’t always prevented companies from bulldozing on through anyway.
Pipeline opponents’ most immediate concern is that the administration will simply hire an archeological surveyor to do a slapdash job that overlooks key sites. “It’s never super-straightforward, especially with this administration. One of the things we’re concerned about is we’ve seen Trump’s administration fast-track these processes,” said Begay.
Also unclear is how a second lawsuit might impact the steps the administration is required to take. The Rosebud Sioux tribe in South Dakota and the Fort Belknap Indian Community in Montana filed a similar suit targeting the Trump administration’s executive order for allegedly failing to fulfill trust obligations to the tribes to appropriately address the impact on tribes’ hunting and fishing rights, as well as to assess the risk to the Rosebud Sioux Tribe’s drinking water system — the pipeline would cross two of its sources.
The ideal outcome of the judgement, said Dallas Goldtooth, another Indigenous Environmental Network spokesperson, is that “investors of KXL really see that this project is too much of a risk and start backing out.”
Another best-case scenario, said Jan Kleeb, one of the founders of the anti-KXL movement in Nebraska, “is that this buys us enough time to get a Democratic president elected.”
Individuals from all sorts of progressive grassroots movements made unprecedented efforts to win elected office this year, and pipeline fighters were no exception. On all levels of government, the anti-pipeline movement sought to influence decision-making on the Keystone XL project.
“I really do think that that unlikely alliance is a clear playbook for how we can also transform electoral politics.”
One of the most high-profile wins for progressives was that of Rep.-elect Alexandria Ocasio-Cortez from New York. In 2016, Ocasio-Cortez visited the massive anti-Dakota Access pipeline camps near the Standing Rock reservation in North Dakota, which were started by veterans of the Keystone XL fight, and called her time there “one of the formative experiences that inspired the effort to renew Congress.”
South Dakota, one of three states through which KXL passes, saw numerous anti-pipeline organizers run for local office, and some won. Julian Bear Runner, a 33-year-old who was arrested at Standing Rock, was elected president of Pine Ridge reservation’s Oglala Sioux Tribe. A state Senate seat was won by Red Dawn Foster, the sister of Red Fawn Fallis, the Dakota Access Pipeline opponent who received the most serious prison sentence among those charged during the fight, after a gun Fallis had been carrying fired when police tackled her.
In Nebraska, home to another arm of the Keystone XL pipeline resistance, Democrats gained three seats in the state legislature, which could boost an effort to pass eminent domain laws meant to complicate plans to plow through the land of property of owners who don’t want a pipeline.
But pipeline opponents lost a fight for a spot on the state’s Public Service Commission. Last year, the PSC denied TransCanada a key permit for its preferred pipeline path, instead offering a permit for an alternate route. Pipeline opponents are appealing the commission’s decision to the state Supreme Court, arguing the new route requires a new application. If an anti-pipeline PSC member had been elected, opponents would have been better positioned to push for a project denial in the event of a favorable judgement.
Kleeb, who is also chair of the Nebraska Democratic Party, interprets the PSC loss, and other progressive and Democrat election losses, as a call to better engage rural voters, something that will be essential in the 2020 presidential race. She said that politicians should look to the grassroots as an example of how to do that.
“There’s no question that under Trump, it’s much easier to see pipelines and other risky fossil fuel projects getting approved, but there’s not a single pipeline project that I’m aware of that, when proposed, is not met with fierce local resistance that is a combination of the landowners, the tribal nations, and the environmentalists,” Kleeb said. “I really do think that that unlikely alliance is a clear playbook for how we can also transform electoral politics.”
On the ground in South Dakota, a state that has long been a center of radical political movements led by Indigenous people, some of Keystone XL’s fiercest opponents are keeping an eye on the company’s movements.
Among their biggest concerns is that TransCanada will continue with pre-construction of the pipeline, which Kleeb said the lawsuit should prevent.
“We are asking people to monitor the line, especially in Montana and here in South Dakota,” said Braun. That’s easier said than done, considering that the pipeline passes through remote areas. Braun said South Dakotans have observed roads being built into pipeline storage sites and potential man camp sites being protected by armed guards. She said at least one person she’s worked with was followed by what she believed to be a pipeline security vehicle for dozens of miles.
The pipeline will skirt the corner of the Cheyenne River Sioux reservation, where Braun lives. Until the end of the summer, she helped run a small Keystone XL resistance camp that was set up almost as soon as the Standing Rock protests subsided. “We asked people to go home and get ready,” Braun said. “It’s up to every individual to decide what they want to do and how far they’re willing to go, hopefully legally.”