Tarred and Feathered

On the afternoon of April 7, 2011, Marian Langan, Audubon Nebraska’s executive director, picked me up at the state’s capital of Lincoln. We struck out for Audubon’s Rowe Sanctuary on the Platte River—a waypoint along the five-hour drive northwest to where we’d be meeting with ranchers desperately trying to defend their property from fragmentation, pollution, and eminent-domain condemnation by a Calgary-based company called TransCanada.

The U.S. Department of State—the agency that okays cross-border pipelines—appears willing to give TransCanada a “presidential permit” to lay a tar sands oil pipeline from Hardisty, Alberta, under the remote, water-rich Sandhills of Nebraska, then on to refineries on the Texas coast.

We arrived at Rowe just as the sandhill cranes, which derive their name from sandhills in Canada not Nebraska, were settling onto the river’s banks and shallows for the night. This is one of the planet’s great migrations, and people come to the sanctuary from around the world to watch it.

Fueled with waste corn for their trek to breeding grounds in Canada, Alaska, and Siberia, the cranes poured in by the thousands, descending in near-solid curtains gray as the sky, landing gear extended, and filling the chill night for 30 miles with clacking and clattering that fell and rose from mere roar to implausible crescendo. In the last smudge of twilight they lined the far bank like riprap—upstream and downstream as far as I could see. I dug out my cell phone, dialed my wife in Massachusetts, and let her listen to the Sandhills’ wild, discordant music.

Apart from being one of the more eloquent expressions of the region’s beauty and wildness, I’d assumed that the crane migration wasn’t part of my story because virtually all their Platte River habitat is safely upstream from the pipeline’s proposed route. But with the sandhill cranes come whooping cranes, among the most endangered of all species, with a total population of about 400. One, in fact, was seen that night from a different blind. The whoopers breed in northern Alberta close to tar sands strip mines and tailing ponds, and lately they’ve been showing up with their white feathers fouled by black material. While the contaminant has yet to be positively identified, tar sands waste is the prime suspect.

As ravenous as we are for oil these days, we’ll take it any way we can get it from any place we can get it. Having drained most of the easy reserves, we’re tapping the difficult ones—three and a half miles under the Gulf of Mexico, for instance, and “tar sands” several hundred feet below northern Alberta’s boreal forests.

It’s expensive in all sorts of ways. In Alberta, for example, the entire native ecosystem has to be bulldozed away, the tar sands below strip-mined, and the oil-laced product, “bitumen,” steamed out by vast amounts of gas-heated water in a process that spikes the planet’s carbon load even as it destroys its carbon-sequestering potential. Waste products include hundreds of billions of gallons of toxic goop, plants, wildlife, fish, rivers, and people (see “Crude Awakening,” March-April 2010).

Keystone XL, as TransCanada calls its proposed pipeline, will be 36 inches in diameter and two times longer than the Trans-Alaska Pipeline. In Nebraska’s Sandhills it will be buried inside the largest underground reservoir on the planet—the Ogallala Aquifer, which charges rivers, lakes, and marshes and supplies drinking and irrigation water to eight states.

Bitumen is too viscous to be piped, so it is spiked with volatile liquid condensate from natural gas and thus converted to a thinner cocktail called DilBit (short for diluted bitumen) that contains all the toxic and carcinogenic fractions found in regular crude oil. And tar sands oil makes pipeline leaks more likely. DilBit has high concentrations of chloride salts, sulfur, abrasive minerals, and acids, and it needs to be pumped under high pressure. So it is rough on pipes.

TransCanada and another company—Enbridge, also based in Calgary—already pipe DilBit to U.S. refineries. In July 2010 Enbridge’s Lakehead Pipeline ruptured, causing the biggest oil spill in Midwest history and sending about a million gallons of DilBit into Michigan’s Kalamazoo River system. The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration, whose regulations don’t differentiate between DilBit and regular crude oil, reported many uncorrected erosion problems in the Enbridge line.

TransCanada, which only ventured into the DilBit business in 2006 but has considerable experience transporting natural gas, operates a DilBit pipeline from Hardisty, Alberta, through Manitoba, the Dakotas, Nebraska, Kansas, and Missouri to delivery points in Wood River and Patoka, Illinois, and Cushing, Oklahoma. The spills it has reported so far have been less severe than Enbridge’s. There have been 10, but they’ve occurred above ground at pumping stations.

Underground leaks are more dangerous. “The environmental impact statement says that some slow leaks will not be detected for long periods,” comments photographer and Nebraska Sierra Club board member Mitch Paine.

But TransCanada’s PR person, Shawn Howard, assures me that the aquifer, two-thirds of its water pooled below Nebraska, will be perfectly safe and that underground leaks aren’t a problem. “If there was a leak underground,” he explains, “it’s so sandy in some of those areas that it’s like if you go to the beach and pour water on sand. It just kind of sucks into one spot; and you’ve got this little drop left. Why would we go and invest $13 billion in a pipeline and put a product in it that was going to destroy it like these activists are trotting out? It makes absolutely no business sense.”

True enough. On the other hand, “business sense” is a commodity more often wished for than possessed. For instance, it made no business sense for BP to invest $350 million building its Deepwater Horizon platform to extract a product so unsafely that the rig blew up.

Also confident that nothing bad can happen and whooping it up for the project are chamber-of-commerce types from the private sector and the state legislature. But they’re in the minority.

In strong opposition is an unlikely alliance of liberals and conservatives, environmentalists and ranchers, sportsmen and property-rights advocates who complain that Keystone XL has been routed for straightness rather than safety. This alliance includes but is not limited to the entire environmental community, the Nebraska Cattlemen, the Nebraska Farmers Union, Bold Nebraska (an online news service that seeks to “restore political balance”), Nebraska’s Republican senator Mike Johanns, Nebraska’s Democrat senator Ben Nelson, 28 members of Congress, and landowners from Montana to Texas.

So TransCanada is feeling unloved and unappreciated. Howard is especially frustrated by America’s media, which he describes as generally slovenly and which he alleges have warped the thinking of Americans so that they have come to distrust TransCanada and its supposedly fail-safe technology. As one of the more egregious offenders he cites The New York Times. On April 2, 2011, the Times called the XL pipeline “unnecessary,” assessed its environmental risks as “enormous,” and revealed that the U.S. Environmental Protection Agency had “sharply criticized” the State Department’s draft environmental impact statement.

Howard directed me to a TransCanada website stating that DilBit from the pipeline will “meet American demand for petroleum products.” DilBit may not even ease that demand because the petroleum products rendered from it will be sold on the world market. And with tar sands oil bypassing Midwest refineries, the price of petroleum products in that region is likely to rise as the supply decreases. Senator Ron Wyden (D-OR) has gone so far as to ask the Federal Trade Commission to investigate TransCanada for what he identifies as “clear” evidence that it has colluded with tar sands strip miners to manipulate oil prices in the Midwest.

Another TransCanada link alleges that after excising Canada’s boreal forests, tar sands strip miners are “restoring the delicate environment pleasingly to its natural state.” The “restoration” is about as pleasing, natural, and genuine as the coal industry’s perfunctory seeding of the stumps it leaves throughout Appalachia after it blows up mountains.

TransCanada contends that it’s just in the delivery business and can’t be blamed for all the carbon pollution and conversion of fish and wildlife habitat to pits and toxic waste. But the EPA doesn’t agree. In the agency’s pillorying of the State Department’s environmental review is a warning, cited by The New York Times, that the pipeline will increase the extraction of Canadian tar sands and therefore greenhouse-gas pollution while simultaneously removing the carbon-sequestering boreal forest. The EPA calculates that the “annual well-to-tank emissions from the project will be 27 million metric tons of carbon dioxide . . . roughly equivalent to annual CO2 emissions of seven coal-fired power plants.”

In addition to its role as an important carbon sink, North America’s boreal forest sustains some of our rarest mammals such as wolverines and woodland caribou while providing habitat for 30 percent of the continent’s land birds—at least 215 species. Northbound birds from all four flyways converge in the boreal forest to feed, rest, or nest. But, as the EPA notes, boreal forest wildlife is being threatened by tar sands strip mining and the toxic waste it produces, about three million gallons of which leaks daily into the environment.

In the United States the pipeline will chew up important wildlife habitat with roads and powerlines to pumping stations and with the excavation itself. But a much bigger threat is leaking DilBit, which could pollute the aquifer for great distances, rendering water unfit for use by wildlife and humans. The state of Nebraska can require that Keystone XL be moved east or west, safely away from its Sandhills. Maintaining the current route simply so TransCanada can save money is, as the Times reported, unnecessary and risky.

The world is fast running out of places like the Sandhills. They seem to roll on forever—20,000 square miles of dunes, some that migrate in the wind, others 330 feet high, and all composed of tiny pieces of the Rocky Mountains ground off and dumped by Pleistocene glaciers as recently as 10,000 years ago, when people were watching it happen.

Because the unstable, porous soil makes crop growing difficult, something like 85 percent of the Sandhills has never come under the plow. As a result they support by far the most intact native ecosystems on the Great Plains, including short-grass, mixed-grass, and tallgrass prairies. Found here are at least 720 plant species, many of which, like the federally endangered blowout penstemon, are tolerant of—in fact, dependent upon—wind and shifting sand. And 314 species of vertebrates are known to breed in this internationally recognized ecoregion.

Jim Hamilton and his sister, Cindy Myers, guided Audubon’s Langan, the Sierra Club’s Paine, and me through Green Valley Township. So close is the Ogallala Aquifer to the surface here that water flowed in the ditches along the dirt roads. Muskrats swam in them; pintails, mallards, and widgeon billowed out of them. Wet meadows teemed with ring-necked pheasants, wild turkeys, western meadowlarks, snipe, killdeer, and red-winged blackbirds. Even when we couldn’t see water we heard the tinkling of chorus frogs. It’s hard to build a fence in this country because when you dig a post hole you get a well.

At the ranch where Hamilton and Myers grew up and which Hamilton now runs, I saw a pipe for a cattle tank that was squirting water three feet into the air. Visitors ask Hamilton what powers it, and some don’t believe him when he accurately informs them it’s the aquifer.

When we crossed into the roadless, virgin prairie behind the barbed wire—where Hamilton and Myers had played in the blowouts, sledded down the dunes, and speared fish—I got a full view of the Sandhills’ wildness and diversity. Strewn among the native grasses were yucca and prickly pear, but there was flowing water even here. It was all a desert in disguise—dry on top, sopping wet a foot down.

“Anyone who thinks Nebraska lacks water hasn’t seen the Sandhills,” intoned Hamilton. And Myers added: “I so wish you could see these hills when they’re cloaked in green and all the wildflowers and cacti are in bloom. There’s no place more beautiful in America.”

Back on the dirt roads, Hamilton showed us the one-room schoolhouse he’d attended when the student body swelled to eight; it’s now abandoned and moldering into the prairie. Clumps of trees marked the sites of recently dismantled houses. The population of the entire township was 84 in 2010, down from 93 in 2000. “When I was a kid it was double or triple that,” said Hamilton. “It’s the same in most of the Sandhills. People keep moving to the cities. We used to have neighbors every half-mile or mile. Now you drive miles and miles to see a neighbor. We’re a small minority, and politicians know they don’t have to pay attention to us.”

The responses of the Nebraska state legislature and the U.S. State Department to public concerns about the pipeline appear to bear Hamilton out. Although the State Department has yet to issue TransCanada a presidential permit, its environmental review seems scarcely more than an effort to feign impartiality. Last October Secretary of State Hillary Clinton announced that she was “inclined” to support Keystone XL. And her agency has denied a Freedom of Information Act request by Friends of the Earth, the Center for International Environmental Law, and Corporate Ethics International that would have shed light on her ties with the former “Hillary Clinton for President” campaign committee’s national deputy director, Paul Elliott, who is now TransCanada’s chief D.C. lobbyist.

On March 8, 2011, Cindy Myers, Mitch Paine, and nine other Nebraskans flew to Washington to express their concerns about TransCanada’s proposed pipeline to their congressional delegation, the EPA, and Dan Clune, the State Department’s principal deputy assistant secretary. When the group asked that the pipeline be rerouted east or west away from the aquifer Clune correctly pointed out that this was the responsibility of state government.

Yet for three years Nebraskans had been told by Governor Dave Heineman and state legislators that routing pipelines was up to the feds. State senator Chris Langemeier, chairman of the Natural Resources Committee, had even labeled any regulating or rerouting on Nebraska’s part “obstructionist,” and his committee has stalled three bills that could marginally protect wildlife and the public from DilBit pipelines.

“It was heart-wrenching to hear some of these folks at the hearings on these bills,” says Langan. “They’re going about their lives. They start getting these somewhat threatening letters from TransCanada asking for easements. In many cases, they felt defeated right then.”

On March 22, 2011, a state senator’s aide told Ken Winston, policy advocate with the Nebraska Sierra Club, about a memo from the U.S. Congressional Research Service declaring that “state law establishes the primary siting authority for oil pipelines.” Winston was shocked when he saw the memo’s date—September 10, 2010. “State legislators seem to have sat on this information,” he told SolveClimate News. “This is bad faith.” Such is the political muscle of the increasingly voterless Sandhills.

The 11 Nebraskans who trekked to our nation’s capital felt a surge of hope when, within a week of their session with Clune, the State Department announced it would prepare a draft supplemental environmental impact statement. “They listened to us,” Myers effused on April 8. But a week later she was feeling “deflated and angry.” The State Department had just hatched its supplement, a 320-page report that appears to clear the way for Keystone XL. I got this appraisal from Senator Johanns: “The State Department still thinks the best route goes through the Sandhills, and I think that’s wrong.”

Johanns is livid about how TransCanada has been threatening landowners with eminent domain in order to frighten them into selling it right-of-way easements. On August 11, 2010, he wrote the company as follows: “I have had multiple conversations with Nebraskans who have indicated that TransCanada representatives have established hard deadlines for landowner responses to offers of easement payments within as little as two weeks, I am told. Nebraska landowners are being told in addition that the use of eminent domain authority will be triggered if they do not accept the offers extended by TransCanada within the arbitrary deadlines. The establishment of such deadlines is especially troubling because TransCanada does not possess the presidential permit required for the project.”

Twelve days later TransCanada responded voluminously, circuitously, but with a promise to remind its agents “not to use the right of eminent domain as a threat.” But the threats continue.

Some landowners simply cannot afford the time to defend their property in court. Two such are Teri and Dennis Taylor, whose cattle ranch, one of the biggest in Nebraska, will be sliced by the pipeline in three counties. When I stopped by their house near Newport they were busy branding, but Teri agreed to knock off for an interview.

“There’s a bull’s-eye on our back,” she said. “This couldn’t have hit us worse. The pipeline crosses [under] our three sections corner to corner for nearly six miles. You saw those big rolling hills on the left as you came in. That’s the path of the pipeline, and it’s the most fragile area on our ranch. TransCanada doesn’t have a permit, and yet they’re threatening us. To me this pipeline is the worst thing that has ever happened to our ranch and the state. It’s a tremendous grab. The route they have chosen is absurd. They just want the shortest one.”

The Taylors think they may have no choice but to sell an easement. “This eminent domain thing frightens us,” continued Teri. “All we want to do is ranch. We spend 100 percent of our time ranching. We have to be on site every single day; we have no hired help. We can’t be distracted by anything.”

She went on to say that a few days after she and her husband had encountered TransCanada surveyors on their property and politely asked them to leave, rumors circulated that the Taylors had chased them off with a pickup truck and then pulled up all their survey stakes. “Those were lies,” she said.

TransCanada proclaims it’s not “bullying” or “threatening” anyone. But back in Lincoln I met rancher Randy Thompson, who made the trip to D.C. with Myers, Paine, and the others. He showed me a letter from TransCanada threatening to condemn his family ranch beside the Platte River. It reads in part: “While we hope to acquire this property through negotiation, if we are unable to do so, we will be forced to invoke the power of eminent domain and will initiate condemnation proceedings.”

“This pipeline would be submerged in water,” said Thompson. “That’s my concern. Being close to the river, we have undercurrents. A leak could be carried who knows where.” When I asked if he’d sell a right-of-way easement if the company gets a permit, he said: “I don’t think so. It’s a family decision, and there are four of us, but we’re all pretty much on the same page. If we voluntarily sell, I feel we could be liable if a spill damaged other property. Our neighbor sold an easement a couple years ago. Like most people he thought it was a hopeless situation.”

In its letter to the Thompsons, TransCanada also stated that it was making its “final offer,” one that would “remain open for one month.” The letter was dated July 21, 2010. But TransCanada’s “final offers” come and go, giving the distinct impression that the company is bluffing. At least one other “final offer” followed in February 2011, says Susan Luebbe of Stuart, Nebraska. Then, on April 7, a third final offer imposed yet another monthlong deadline. Holdouts, TransCanada again warned, will face “litigation.”

Can a foreign company really show up in the United States and invoke eminent domain against U.S. citizens before it gets permission for a project it hopes to construct? TransCanada says yes.

But Nebraska law says that no company can invoke eminent domain without all its permits: “A petition filed pursuant to [the eminent domain] section 76-704 shall include a statement of the authority for the acquisition.” At this writing TransCanada has no such authority, and the State Department isn’t expected to issue a presidential permit until the end of the year.

It’s by no means clear that a foreign entity can invoke eminent domain against Americans even after it gets a federal permit for a project. A lawsuit by Oklahoma landowners against TransCanada for eminent domain threats may partially settle that issue.

No matter what the State Department decides, TransCanada’s legal standing is as porous and unstable as the Sandhills themselves. And the question Americans need to ask the Obama administration and state politicians is this: Is our addiction to foreign oil really so irresistible that state lawmakers and the White House have to risk the health of U.S. citizens and trample their property rights?

WHAT YOU CAN DO

Write Secretary Hillary Clinton—at the U.S. Department of State, 2201 C Street NW, Washington, DC 20520—and urge her to deny TransCanada’s permit. Ask your legislators to make the same request. For the latest information on Keystone XL, go to Bold Nebraska.