One Judge’s Role in Sabotaging the Keystone XL Pipeline Project

Last week I was chatting with a friend who asked me the current status of the Keystone XL pipeline project. This is the pipeline that would transport over 800,000 barrels per day of oil from Alberta, Canada to Nebraska. There it would connect with existing pipelines that feed into the oil refineries in the Gulf Coast region.

President Barack Obama had sided with environmentalists in blocking the construction of the pipeline whereas President Donald Trump has openly supported this project, both before and after taking the oath of office. Indeed, two months into his presidency, the State Department issued the necessary permit for the pipeline to cross the U.S-Canadian border.

I don’t know if my friend and I jinxed the project, but late last week a federal judge declared that he was putting the project on hold. By taking this aggressive action, U.S. District Judge Brian M. Morris has endeared himself to “environmentalists who want to keep fossil fuels in the ground” (to use the words of The Wall Street Journal’s reporter Miguel Bustillo).

This appears to be a case of judicial usurpation of the legislative and executive branches of government. Since when are judges supposed to determine our country’s energy policies? Environmentalist activists have been blocking the Keystone XL project for a decade through a series of legal delay tactics and, for eight years, with the cooperation of the Obama administration.

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Judge Morris is demanding an updated environmental review “to weigh several additional factors, including the impact of lower oil prices on the project’s viability, its related greenhouse-gas emissions and modeling of potential oil spills it could cause.” These are three transparent pretexts that the judge has no business requiring.

The first demand the judge made is for the private business interests that want to undertake this project should consider its economic viability. Really? Does he think that the people who want to build Keystone haven’t considered its potential for profit and loss? It’s their money; if they want to risk it, who is a judge to rule that they can’t?

The very premise of this request is absurd, because it implies that human beings can somehow calculate what future market prices will be. This is the arrogance of a socialistic central planning mentality. Nobody knows the future. On the positive side, increasing the production of energy sources in politically stable North America will enhance national security. It may also help to increase the supply of oil enough to push energy prices lower to the great benefit of Americans, and particularly poorer Americans who spend a higher percentage of their income on energy than do more affluent Americans. And if the project eventually goes bankrupt, well, the taxpayer isn’t on the hook. This is a private investment with the financial risk all borne by the private sector. It isn’t the judge’s role to interfere with the private decision of how much risk people are willing to take with their own property.

As for the second reason given for blocking construction of this pipeline, why should the builders of Keystone XL have to quantify the project’s carbon dioxide emissions? Until such a requirement becomes the law of the land universally applicable to every company, this is a discriminatory action. Besides, as I’ve written elsewhere (here and here and here) it turns out that the increased concentration of carbon dioxide in the atmosphere is significantly greening the earth while the heat-trapping capacity of this benign gas is close to maxed out.

Finally, the demand for “modeling” of potential oil spills is a red herring. Moving oil long distances through pipelines is not a new industry. Our country already is crisscrossed by thousands of miles of pipelines. Do accidents occasionally happen? Yes, but rarely. The big story is how countless barrels of fossil fuels have been transported safely day after day, year after year. It sounds like the judge suffers from a typical liberal desire, which is to live in a perfect and risk-free world. Sorry, sir, there is only perfection in heaven. To block a project because there is a small chance that something might go wrong is essentially prejudicial. It feels like the Tom Cruise movie “Minority Report” in which the police, employing psychics, arrested people before they committed a crime. That isn’t American justice.

We have laws in place to punish malfeasance, if and when it should occur. The companies that want to build the Keystone XL pipeline face powerful economic incentives to get it right. They’ve been jumping through regulatory and legal hoops for ten years. It’s time to quit persecuting them and let them get on with it.

As President Trump stated one time when he declared his support for Keystone, America is about building. The first steps to organize the project for building the Empire State Building happened in 1929.  Construction began the following March and was finished one year and 45 days later. These obstructionist delay tactics are a disgrace to our national heritage.