The Keystone XL Pipeline Controversy
The Indigenous groups who have been protesting the company’s proposed Keystone XL pipeline for nearly 14 years would likely disagree with the claim that this is the approach the company has been undertaking.
The pipeline, as proposed by TC Energy — then Trans Canada, the company changed its name in 2019 to revitalize its image — was meant to transport 830,000 barrels of tar sands oil across 2,687 miles, from Alberta, Canada, to the Gulf Coast, daily. Billions were invested in the project, which Trans Canada along with the Government of Alberta claimed would benefit pipeline building trade unions, local communities, Indigenous groups, elected officials, landowners, the Government of Canada, contractors, suppliers, and employees. It was estimated that it would bring over $3 billion in yearly revenue for the U.S. The company managed to rapidly complete the southern portion of the pipeline by 2010 by pursuing legal loopholes, obtaining a Nationwide Permit from the U.S. Army Corp. of Engineers rather than going through individual permitting processes. In the more than decade since, the 1,209-mile-long northern portion has been the main source of controversy.
Upon completion, the northern portion of Keystone XL was to pass through Montana, South Dakota, Nebraska, and Oklahoma. Numerous tribal groups, such as the Cheyenne River Sioux, are present in the area. Aware of tar sands oil’s corrosive properties and Trans Canada’s history of spillage incidents, these groups opposed the pipeline over concerns that it would likely leak and contaminate resources on their lands, both natural and cultural. A 2017 study carried out by Greenpeace validated spillage concerns: the organization found that Trans Canada, Kinder Morgan, and Enbridge — all tar sands pipeline building companies — had seen 373 spill incidents since 2010. The entirety of the U.S. crude oil pipeline system was found to average roughly 570 barrels of spilled oil per 1,000 miles of pipe during the same time period. Based on these rates, Greenpeace predicted a completed Keystone XL would spill 59 times in the next 50 years.
Despite there being mounting evidence legitimizing the fears Indigenous groups held regarding the pipeline, the U.S. government repeatedly made attempts to permit its construction. Legislators continually weighed the benefits of curbing U.S. reliance on foreign oil against the cons of destroying the livelihoods of peoples who have faced persecution for centuries, essentially weighing financial gains against lives.
Legal Timeline
The National Congress of American Indians officially declared its opposition to the construction of Keystone XL in June of 2011. It emphasized the need for energy security but stated that this should not be pursued at the expense of Indigenous American communities. That year, President Obama rejected the permit Trans Canada would need to build the northern portion of Keystone XL. He explained he felt Republicans in Senate rushed the approval process, not giving the State Department the time, it needed to fully assess the pipeline’s potential impacts. The U.S. Senate responded to the rejection of the permit by passing the Northern Route Approval Act in 2013, which declared that a presidential permit was not needed for the construction of the northern portion. It emphasized energy security and economic benefits in its decision.
Indigenous communities continued to fight the project. They repeatedly met with officials from the State Department, White House, and Environmental Protection Agency. They, along with formal environmental organizations like 350.org and the Sierra Club, held protests and demonstrations in front of numerous government offices. Tribal representatives noted that the various political actors they had met with deflected their responsibilities to Native American tribes and were knowingly making the choice to not be proactive in preventing harm from being done. After one such meeting, Kandi Mosset, an organizer with the Indigenous Environmental Network and citizen of the Mandan, Hidatsa, and Arikara Nations summarized this sentiment, stating, “They [the State] can be proactive if they want to be, we just have to keep pushing.”
Indigenous groups did, in fact, keep pushing state actors. In 2015, the Keystone XL Pipeline Act, which authorized Trans Canada to construct and maintain its pipeline, was approved in both the House and Senate, but vetoed by President Obama, who stated: “This act of Congress conflicts with established executive branch procedures and cuts short thorough consideration of issues that could bear on our national interest — including our security, safety, and environment.” Indigenous groups celebrated this victory, which recognized their right to have a say in national affairs. It was, however, short lived as President Trump, an actor once again motivated by profitability and the notion of energy independence, issued a presidential permit for the construction of the pipeline in 2017.
The Indigenous Environmental Network and North Coast River Alliance countered Trump’s move by filing suit in the Federal District Court of Montana on the grounds it violated the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Bird Treaty Act, the Bald Eagle and Golden Eagle Protection Act, the Administrative Procedure Act, and additional regulations. They held that the State Department’s Final Environmental Impact Statement conducted pursuant to NEPA had inadequately identified a detailed purpose and need, analyzed alternatives, studied transboundary effects, fully analyzed adverse impacts, formulated mitigation measures, and responded to comments.[8]
The Court ruled in the Indigenous Environmental Network and North Coast River Alliance’s favor in 2018, requiring further review of the pipeline’s impacts on the environment, its impacts on cultural and historical resources, and potential mitigation measures for adverse impacts across the board. This did not put a stop to the project but was a significant hurdle for Trans Canada to overcome. At this point, with the additional need to conduct more environmental assessments, the project had become highly, highly expensive and seemed unfeasible.
The tumultuous legal and political battle associated with Keystone XL officially came to a halt in June of 2021, when President Biden terminated the project. This termination was a fulfillment of his campaign promise to environmentalists.
Environmental Justice
The Keystone XL pipeline is not a standalone issue, but rather, an event in the U.S. government’s history of causing irreversible ecological, psychological, and sociocultural harm to Indigenous groups. These groups have repeatedly been seen as expendable in the eyes of the U.S. government when it pursues its goals. Consider the near extermination of the bison in the late 19th century — the U.S. government wanted to “open” lands in the West and did this through eliminating a resource Plains groups relied on for food, clothing, and shelter, essentially starving them out. Though Keystone XL and the near extermination of the bison are over a century apart, they demonstrate that the exploitative aspect of colonialism remains visible in the government’s pursuits today.
Environmental justice is a sociological concept that provides a lens through which one can assess the degree to which social inequality and power are embedded in society, as well as the “expendability of human and nonhuman populations facing socioecological threats from states, industries, and other non-political forces.” The environmental justice movement is known to have originated in Warren County, North Carolina in the 1980s. The state of North Carolina designated the county, which housed a predominantly African American population, as a dumping ground for toxic waste. Community members rallied against this move but were unable to reverse the decision. Their actions inspired communities facing disproportionate, detrimental environmental harms to push back against similar government and corporate actions. A modern definition of environmental justice as set forth by the U.S. Environmental Protection Agency reads: “The fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations, and policies.” Applying environmental justice to the controversy surrounding Keystone XL illuminates how colonization, “reservationization,” capitalism, and other processes have allowed for the potential contamination of resources viable to Indigenous populations, the violation of treaty rights, and the threat to Indigenous livelihoods.
These processes are so unique to Indigenous groups that an entirely distinct Indigenous environmental justice theory is needed to bring about considerations of how systems of governance have failed Indigenous groups by causing or allowing for socioecological violence against them to occur. It “can incorporate a range of demands for equity, recognition, participation, and other capabilities into a concern for the basic functioning of nature, culture, and communities.” This framework also recognizes the unique spiritual relationships Indigenous communities have to their lands. It begs the question of why groups are located where they are today and why Indigenous groups have not been able to fight socioecological threats in the past.
Environmental justice theory in the context of Keystone XL asks us to call the applicability of legal and political systems when addressing Indigenous-American matters into question. The National Congress of American Indians, Indigenous Environmental Network, and other Indigenous groups fighting the pipeline’s construction had repeatedly voiced their concerns, for which there was mounting evidence, with political actors who chose to prioritize the pipeline’s ability to generate revenue and create jobs over livelihoods and environmental degradation.
The government’s allowance of said degradation can be thought of as an “intensification of colonialism,” a process where one group politically and economically incorporates the population, land, and resources of another.
Despite limited resources and political power, Indigenous groups fought the pipeline for 12 years. As stated in the 2013 International Treaty to Protect the Tar Sands Projects, they were guided by Indigenous knowledge and spiritual values that called upon protecting and preserving their lands. Framing the issue around inequality and justice allowed for successful alliance-forming among tribes and gaining a large support base among the general public that generated pressure for the federal government to act accordingly. Lawsuits filed by these groups prolonged the project to the point that it became far too expensive for Trans Canada to maintain or move forward with. Thus, by essentially financially starving out the company and holding politicians accountable through campaign promises, Indigenous groups were able to successfully terminate Keystone XL.
While an application of environmental justice in the case of Keystone XL highlights potential pathways Indigenous groups may pursue when being met with future socioecological threats, it also calls into question how successful the protests, meetings, and lawsuits Indigenous groups pursued actually were. President Trump was a known advocate for the pipeline, insistent on its construction. The termination of the pipeline came about when there was a change in the executive branch of the settler colonialist government. It’s difficult to imagine how the controversy would have played out had President Biden not been elected into office. Was the Indigenous movement against the pipeline the major driver of change here, or were other political and economic factors the ultimate deciders?
Conclusions
Applying an Indigenous environmental justice approach to the Keystone XL controversy allows for a deeper understanding of the issue at hand. The long legislative back-and-forth concerning the construction of the pipeline demonstrates the U.S. government’s inability to recognize the value of the lives of those native to its lands when faced with the possibility of turning a massive profit.
Indigenous groups fought the pipeline for 14 years. Motivated by their ties to the land and the importance of preserving it for future generations, they formed alliances, wrote treaties, met with lawmakers, and protested. These actions brought the matter in front of the public eye, making it difficult for the U.S. government and Trans Canada to shy away from the impacts the project would have.
The battle resulted in a success for Indigenous groups. It’s important, though, to acknowledge whether it had to take place at all. The government is meant to serve the will of the people. In emphasizing profits and energy security when moving to construct the pipeline, the government made it clear that this “people” excluded the Indigenous groups that would face the brunt of the burden. It is evident that there is a need to develop systems that would hold the U.S. government accountable for its detrimental actions against groups so that it may represent their interests as it is supposed to.
By: Julia Pienkowska
