Can This Group of Farmers Finally Defeat Keystone XL?

12 Mar

For nine years, a small army of Nebraska landowners has defended its homeland against TransCanada, the Calgary-based company intent on running its $8 billion Keystone XL oil pipeline through Nebraska so it can deliver oil from northern Alberta to refineries along the Gulf Coast of Texas. At times, KXL has been the national environmental issue; other times, like now, it’s lucky to make the local news, a worry only for those whose land might soon be interrupted by a 36-inch pipeline carrying heavy, viscous tar sands oil (mixed with undisclosed chemical diluents) just beneath the surface and directly atop their primary water source: the Ogallala Aquifer.

Landowners and other opposition groups have quietly gathered in courthouses and prairie churches, protested on capitol grounds and on cable TV. They’ve memorized the fact sheets: the mileage (1,179); the barrels per day (830,000); the likely number of full-time jobs in Nebraska (no more than ten); the fact that TransCanada has spent more money lobbying for this pipeline than any other utility company in Nebraska’s history (upwards of $900,000 between 2011 and 2015 alone). Some landowners have given up retirement plans to fight the pipeline full-time. More than a few have lost friends along the way.

From a national perspective, President Donald Trump’s pro-industry stance has drastically changed the optics on the pipeline battle. Barack Obama twice rejected the pipeline, while Trump campaigned on a pledge to approve it, along with the similarly controversial Dakota Access pipeline in North Dakota. Opponents nationwide considered both projects a bellwether for the next era of America’s environmental policy: if approved, they would signal a renewed commitment to fossil fuels and a direct threat to one of the world’s largest underground freshwater sources. So when Trump approved the Keystone XL last March, claiming it would be “the greatest technology known to man or woman,” the battle seemed to be over.

But for pipeline opponents in the Cornhusker State, the view from the ground is far from hopeless. Last November, in a perplexing three-to-two vote, the Nebraska Public Service Commission (NPSC) rejected TransCanada’s preferred route. Instead the commission okayed the company’s alternate choice, a path that differs from the original 63 miles in northeast Nebraska. Those 63 miles could make all the difference: a new route means new easements and likely a host of pricey new lawsuits.

The decision was such a blow that the company requested the NPSC modify the wording of its decision. But the commission unanimously rejected the motion, a ruling that landowner attorney Brian Jorde called the “worst decision possible for TransCanada.”

What this means is that the Keystone XL—after nine years and two presidents—might finally be felled by legal technicalities and groups of well-organized farmers. To gauge the project’s momentum, I attended landowner meetings hosted by both TransCanada and the Nebraska Easement Action Team, a legal defense nonprofit representing landowners affected by the pipeline. Or rather, I tried to.

Despite the legal ambiguities, TransCanada continues to push forward. In early December, the company announced a slew of landowner meet-and-greets at what it called Landowner Engagement Centers in communities along the new alternate route. One was held in a small conference room at the Cobblestone Hotel in Seward, Nebraska, a county seat of 7,200 people surrounded by the stubble of empty cornfields.

When I arrived at the hotel, hoping to meet some landowners and gauge their feelings on the risks and rewards of the pipeline, the ice machine gurgled and the Weather Channel was playing on mute in an empty lobby. A large welcome sign stood next to the conference room door, which TransCanada spokesperson Robynn Tysver immediately closed when I introduced myself as a journalist.

“Seriously, they deserve privacy,” she said.

Less than a minute later, as I waited in the lobby, jotting a few useless notes about the Weather Channel and the ice machine, Tysver returned.

“You know, I have to tell you, I’m uncomfortable having you even here.”

I turned to the receptionist.

“Do you mind me sitting in your lobby?”

“Nope,” she said.

During the 2.5 hours I sat there, fewer than ten people entered the room, and those who did were hardly willing to talk. Each time I stood from the table to follow them out, another TransCanada representative rose and followed close behind. Tysver had never heard of Outside, so perhaps I sounded fishy. Tysver had a hunch.

“You’re not here on behalf of Bold Nebraska?” Tysver asked, referring to a nonprofit environmental advocacy group that has dogged TransCanada from the start.

I left soon after, but not before catching a pair on their way out who agreed to answer a few questions. Both Sam Ferguson and his mother live in Seward, though they don’t own land in the path of the alternate route. As they talked to me, neither smiled.

“Whether or not I’m a landowner, this does affect me,” Linda said. “A pipeline does affect me and my children and his children.”

“I don’t even have an opinion on this thing yet,” Sam added. “I don’t know shit about the pipeline. My concern was if there’s a danger of it leaking, that trumps anything positive.”

There’s plenty of reason to be concerned about leaks. Just weeks before, the existing Keystone pipeline had spilled more than 210,000 gallons near Amherst, South Dakota, and barely a fifth was recovered. This was TransCanada’s third major spill in the Dakotas since the pipeline began operation in 2010.

The original Keystone was installed just west of Seward, and the newer, larger XL pipeline would also run west of town, though residents here negotiated to steer it away from the local reservoir. Save for this notch around the town, the southern half of the alternate route in Nebraska would run parallel to the existing Keystone pipeline, all the way to its southern terminus in Steele City.

It’s this slight deviation that could ruin the pipeline’s future, because while TransCanada insists that the Keystone XL “remains a viable project with strong commercial support,” some energy analysts say it’s become a risky gamble.

Extracting bitumen from tar sands requires mining and separation, a much more complex and costly process than extraction from conventional oil shales, where bitumen can be pumped in its natural state directly from the ground. In other words, the profit margin is inherently lower. But TransCanada first conceptualized the pipeline about a decade ago, when oil prices peaked at nearly $150 per barrel and producers rushed to siphon every last drop. Since then, prices have crashed.

The pipeline faces another problem: oil companies are selling off their Canadian assets, signaling a shift to less expensive and cleaner products. This math gets worse for TransCanada the longer the fight drags out.

In September 2014, after six years in regulatory limbo, TransCanada acknowledged that legal delays had already driven up the cost of the pipeline by nearly half, from $5.4 billion to $8 billion. Had the NPSC approved the preferred route, TransCanada could have started construction immediately. But now it has two options: build along the alternate route and face what is likely to be an onslaught of new lawsuits from previously unaffected and unnotified landowners, or fight the commission’s decision in the Nebraska Court of Appeals, a process that would likely take years and add millions, if not billions, to the tab.

One night after the Cobblestone event, the Nebraska Easement Action Team (NEAT)—a legal defense nonprofit representing landowners affected by the pipeline—hosted a gathering of its own, the first of several up and down the length of the alternate route. Unlike TransCanada’s Landowner Engagement Centers, the NEAT meetings functioned as de facto public events. This one was held in the Olde Glory Theatre, a repurposed church just a few blocks off the town square, and the seats were filled with about 75 area residents, some of whom, presumably, recently learned that the pipeline’s new path would now cross their land.

NEAT was established by Brian Jorde and Dave Domina, the same attorneys currently fighting TransCanada. Weeks before, Domina had told the NPSC that if it accepted TransCanada’s request to amend its application, it would destroy the commission’s reputation. “That would make a mockery of you,” he’d said. “It would make a mockery of the judiciary.” Though an outgrowth of Bold Nebraska, NEAT emphasizes that it is not an anti-pipeline group, but rather a pro-landowner group, and the landowners were finally enjoying the upper hand.

Landowners who currently welcome the pipeline are lured either by the money—which includes a signing bonus as high as $80,000, NEAT says, in addition to a one-time easement payment—or the politics. In a deeply conservative state, claims of American energy independence have convinced many that supporting the pipeline is an act of patriotism. On the other hand, those who oppose the project see a loss of private property rights and an environmental cancer: not just increased greenhouse gases and a threat to the aquifer, but also soils compacted beneath heavy machinery, reduced crop yields, and negative impacts on surrounding wildlife. Nevertheless, should TransCanada clear the remaining legal hurdles, landowners of every political stripe will share at least one desire: to have the upper hand in negotiating with a multibillion-dollar corporation.

“Imagine if Ted Turner, one landowner, happened to have all the holdings that stretched 280 miles along the length of this pipeline,” Jorde told the crowd in the theater, employing an oft-used analogy. “Do you think one person with all that land would have more leverage than one of you, who might just have a small piece? So how can we empower each of you to be Ted Turner? By grouping together.”

Most landowners at the meeting seemed to oppose the pipeline, asking questions about tar sands oil, the county’s responsibility in the event of a spill, and whether or not TransCanada can sell the easement to a third party. (It can.) One woman, clutching a newspaper clipping with a map of the alternate route, stood and said simply, “I cannot tell exactly where the route is,” to which the majority of the room laughed and nodded in agreement.

At least one man stood to support Keystone XL and said he owned land already crossed by TransCanada’s first pipeline. His name was Roy Cast, and he argued that extracting oil “is in fact cleaning up the environment in Canada” and that opponents should remember that American blood has been spilled “to protect our right to have oil shipped into this country.” He spoke forcefully while those around him shook their heads or stared at the table.

In the foyer after the meeting ended, I spoke with Tad Warm, a farmer who lives ten miles northwest in the small town of Staplehurst. Not long ago, Warm received a letter from TransCanada, but he already knew his land would be crossed. When the alternate route was first published, he dove into the plat maps. The pipeline would pass within 100 yards of the house he lives in with his wife and two kids and would cross farmland that’s been in his family for nearly 70 years. He told me he’d been at the TransCanada meeting in the Cobblestone Hotel the day before and was frustrated with the way TransCanada sidestepped his concern.

“I brought up the South Dakota spill, and they said, ‘Oh, we’ll replace the land,’ and I’m like, ‘Yeah, how long? And will you replace it like it used to be?’ They didn’t answer the question.”

I asked him about the money, the signing bonuses.

“It could never be enough.”

After watching the pipeline battle rage on for nearly nine years, those who left the Olde Glory Theatre and shuffled out into the night already held a better hand. The last time TransCanada barreled through, some had been wooed by big checks. But they were wiser this time, their questions were more specific, their rebuttals more pointed, their concerns hardened by what they’d already seen.

This time, they were ready for a fight.