A vital water crossing certification for the Keystone XL crude oil pipeline is in limbo after environmental groups challenged Montana’s recent issuance of a water quality certification. The state’s decision and an appeal comes during a transition in state and federal administrations.
Environmental groups filed a notice of appeal just days after the Montana Department of Environmental Quality announced its decision to allow the pipeline to cross more than 200 protected water bodies in eastern Montana.
Canadian developer TC Energy needs the statewide permit to construct the Montana leg of a 1,200 mile pipeline that will transport crude oil from the Alberta tar sands to the Gulf Coast of Texas.
DEQ’s then-director Shaun McGrath told YPR late last month the Trump Administration required the DEQ to finish the process faster than the agency was comfortable with, which prevented the DEQ from considering all of the more than 650 public comments.
"By curtailing that important part of the process so that we don’t fully benefit from the input from the public means that we might have missed some things," he said.
The DEQ issued the 401 Water Quality certification with conditions, including requirements for the company to consult with the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation and avoid contact with water, for example, by drilling under the water body.
Guy Alsentzer, who represents the Northern Plains Resource Council and Sierra Club in their appeal, says they would have liked to have seen a more in depth environmental assessment for the water crossings.
“You don’t give an appropriate scope of review and you give that very abbreviated glance, yeah, we’re gonna have some problems because you’re gonna miss things," says Alsentzer.
The groups early this month called for a hearing in front of the Montana Board of Environmental Review. They say the certification threatens water quality and fails to prevent the risk of spills.
The certification cannot go forward while the governor-appointed environmental board considers it, which could take months.
Alsentzer says the U.S. Army Corps of Engineers is waiting on the state to issue this certification.
“And without a 401 certification from the state of Montana, the Corps may not go forward with its own permitting process for the pipe KXL within Montana," he says.
The upcoming shift in federal administration may change the government’s relationship to the Keystone XL project.
The Trump Administration has taken a favorable approach to the oil and gas industry over the last four years. President-Elect Joe Biden’s campaign told Politico in May that Biden would rescind the U.S.-Canada border crossing permit President Donald Trump granted the Keystone XL if elected.
Tribal governments and tribal members in the path of the pipeline have opposed it. Dakota-Lakota activist Angeline Cheek from the Fort Peck Assiniboine and Sioux tribes is one of hundreds of people who submitted comments to the DEQ. She says she feels unheard.
"So far, in my experience, it seems that Native Americans aren’t really part of the constitution, and I’m really not surprised or shocked that the water permit got approved of because Native Americans are the last on officials’ minds," says Cheek.
One of the conditions DEQ included in TC Energy’s water quality certification was that the developer must consult with the Fort Peck Assiniboine and Sioux tribes’ office of environmental protection, which declined to comment for this story.
Some elected officials in eastern Montana, like McCone County commissioner Jim Moos, continue to anticipate pipeline construction and the tax dollars it could bring into government coffers.
“McCone County is a completely agricultural-based county, and we really could use this income from this pipeline," says Moos.
In a comment, TC Energy says receiving the 401 Water Quality Certification is an important milepost and the pipeline will adhere to strict regulatory and environmental compliance standards.
TC Energy is still working on pre-construction activities in the United States, like building pump stations and worker housing camps, according to the company’s website, and has not yet begun to lay pipe.
The notice of appeal environmental groups sent to the Board of Environmental Review earlier this month puts certification on standstill.
Gov. Greg Gianforte recently announced his appointments to the four vacant seats on the seven-person board. The board has not released a timeline for considering Keystone XL’s water crossing certification.
