The Unsatisfactory Approval Process for Keystone XL: Jocelyn Stacey

McGill University Doctor of Civil Law student Jocelyn Stacey has posted an article on ABlawg.ca about the shortcomings of environmental assessment legislation in Canada and the U.S. - Failing to Assess the Key Issue: The Unsatisfactory Approval Process for Keystone XL.  In particular, Ms. Stacey cites the failure of environmental assessment processes in the context of pipeline project approvals to address impacts of climate change:

This is not intended to be a comprehensive critique of environmental assessment legislation in Canada or the U.S. - there is no shortage of commentary on the merits and flaws of environmental assessment. Rather, what Keystone XL so aptly demonstrates is how easy it is for environmental assessment to not only to ignore, but actually obfuscate the impacts of climate change - arguably the most pressing environmental issue of the day and therefore the most in need of pre-development assessment.

The rhetorical trick that allows regulators to duck the real emissions issues is reliance on the fatalist assumption that, if this pipeline is not approved, then another will; thus, no increase in greenhouse gas emissions can be attributed to this particular project. For example, the NEB concluded:

In the Board’s view there is no evidence of a connection or nexus between the applied-for project and other projects or activities which would make emissions from upstream activities relevant to the Board’s considerations in this Application. The operation of the upstream facilities is not contingent on the construction of the Keystone XL pipeline; they will presumably continue to operate whether or not KXL is ever built (at 75).

Similarly, the report commissioned by the Department of State concluded:

… studies indicate that building versus not building Keystone XL would not of itself have any significant impact on: U.S. total crude runs, total crude and product import levels or costs, global refinery CO2 or life-cycle GHG emissions. This is because changing WCSB [Western Canadian Sedimentary Basin] crude export routes would not alter either U.S., Canadian or total global crude supply, (other than a small impact under a No Expansion scenario), or U.S. and global product demand and quality. The same slate of crude oils would have to be refined even if reallocated geographically (Ensys Energy & Systems Inc., Keystone XL Assessment - Final Report (Dec. 23, 2010) at 116).

This assumption allows regulators to consider the pipeline in isolation - disconnected from its effect on upstream production and downstream use - making it much easier to ascribe no impact to what is, in actuality, only one small component of a much larger development project. Perhaps even more puzzling, is that the fatalist assumption also enables regulators to shift the baseline against which impacts are measured. Why aren’t the impacts of emissions from Keystone XL measured against emissions today, not the wholly speculative emissions baseline that we assume will occur? In fact, what should be the conclusion of the assessment - “other than a small impact under a No Expansion scenario” - is relegated to parentheses, a trivial point only noted to ensure technical accuracy.