Keystone XL Pipeline Litigation?

Can Keystone XL Pipeline contents from the Canadian Tar Sands be purchased or used by agencies of the U.S. Federal Government?

Or can "shale kerogen/oil" be purchased or used by agencies of the U.S. Federal Government?

In yesterday's post we linked to an article which indicated that, during the development of anti-tar sands legislation discussions, the issue was brought up.

House Committee Chairman Henry Waxman indicated in a letter to his Senate counterpart that the answer is no.

Waxman was very clear that the law the House passed, that the Senate passed, and that President Bush then signed into law, does forbid federal agencies from entering into contracts to procure tar sands oil.

A bill introduced by Senator Lindsay Graham (R-SC) supports that notion in a round about way:

A BILL

To amend the Energy Independence and Security Act of 2007 to promote energy security through the production of petroleum from oil sands, and for other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Oil Sands Energy Security Act of
2011''.

SEC. 2. PROCUREMENT AND ACQUISITION OF ALTERNATIVE FUELS.

Section 526 of the Energy Independence and Security Act of 2007 (42
U.S.C. 17142) is repealed.

(S. 1043). Since one cannot repeal a law that does not exist, the law is active still, so let's take a look at what the statute says:

No Federal agency shall enter into a contract for procurement of an alternative or synthetic fuel, including a fuel produced from nonconventional petroleum sources, for any mobility-related use, other than for research or testing, unless the contract specifies that the lifecycle greenhouse gas emissions associated with the production and combustion of the fuel supplied under the contract must, on an ongoing basis, be less than or equal to such emissions from the equivalent conventional fuel produced from conventional petroleum sources.

(42 USC §17142). The controversy, therefore, now concerns whether any fuel condensed from Canadian Tar Sands and/or condensed from U.S. shale kerogen would be against federal law.

The first question is "what is a federal agency?"

There is little doubt that it applies to all federal agencies, and that the term agency can apply to military:

Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979), aff'd in part, rev'd in part, 643 F.2d 835 (1st Cir. 1981), rev'd on other grounds sub nom. Weinberger v. Barcelo, 456 U.S. 305 (1982) (Navy bombing); Aluli v. Brown, 437 F. Supp. 602 (D. Haw. 1977), aff'd in part, rev'd in part, 602 F.2d 876 (9th Cir. 1979) (Navy bombing). See also Catholic Action of Hawaii/Peace Educ. Proj. v. Brown, 468 F. Supp. 190 (D. Hawaii 1979), rev'd on other grounds, 643 F.2d 569 (9th Cir. 1980), rev'd sub nom. Weinberger v. Catholic Action of Hawaii/Peace Educ. Proj., 454 U.S. 139 (1981) (Navy munitions facility).

The statute does not exempt the military, which is the largest single federal agency within the government, the largest single user of fossil fuels (see here also).

The act that is forbidden is to "enter into a contract for procurement", which means that any company doing so would risk potentially grave economic detriment because, among other things, their contract could be unenforceable.

The specific substance prohibited is "an alternative or synthetic fuel, including a fuel produced from nonconventional petroleum sources", which is probably ambiguous enough to cause federal courts to go into interpretation mode, since the statute does not define it and it is not a term of art in the language of Oil-Qaeda.

There is very little to no doubt that, all things considered, "Canadian Tar Sands oil and/or shale kerogen" would exceed "the lifecycle greenhouse gas emissions associated with the production and combustion of the fuel supplied" from "conventional petroleum sources."

Thus, the Sierra Club filed a lawsuit in federal court in California, which was transferred to the federal court in Virginia (Sierra Club v DoD).

The case was dismissed in the Virgina federal by Claude M. Hilton, the federal judge concluding that Sierra Club did not have standing because pollution would continue anyway whether or not the military used tar sands oil in violation of the law (Case 1:11-cv-00041-CMH-TRJ, Document 121, Filed 07/29/11). That federal judge was appointed by Reagan and served on the FISA secret court for several years.

So, it may be that violating the laws made to protect the environment will be ignored by the military, and who knows, maybe the other federal agencies as well (When Government Doesn't Get It).

The president could issue an executive order directing them to comply with the law, but that seems unlikely (False Climate Change Meme Infects The President).

Even though global warming induced climate change is the greatest threat to military security, kills millions annually, and endangers hundreds of millions, nobody can sue Oil-Qaeda  -- "go get US Oil-Qaeda" seems to be the position of those who say they want to protect us and make us secure (Oil-Qaeda: The Indictment - 2).

---

The lyrics to the following song (Ballad of Oil-Qaeda) are here.

---

---