December 7, 2007 BY ELECTRONIC AND U.S. MAIL
Ms. Elizabeth Orlando
OES/ENV Room 2657
U.S. Department of State
Washington, D.C. 20520
Re: Enbridge Pipeline Projects; Alberta Clipper
Comments of the Minnesota Center for Environmental Advocacy
Dear Ms. Orlando:
These comments are submitted on behalf of the Minnesota Center for
Environmental Advocacy (“MCEA”). MCEA is a Minnesota-based non-profit
environmental organization whose mission is to use law, science, and research to
preserve and protect Minnesota’s natural resources, wildlife, and the health of its
people. MCEA works in a number of program areas, Energy/Climate Change and
Natural Resources being most relevant to this matter. MCEA’s members live,
work and recreate in the area of the proposed pipeline and in northeastern areas of
the state that may be impacted by emissions from refineries in the Twin Cities and
Superior, Wisconsin.
MCEA’s comments will first outline the relevant facts as understood by MCEA
and will then address issues of connected actions, indirect impacts and cumulative
impacts from the project and related, connected or similar actions. In particular,
MCEA’s concerns regarding environmental impacts in this matter are the impacts
that this pipeline, similar area pipelines, and the resulting refining and burning of
tar sands petroleum, will have on global warming at a time when the United States
reduce emissions of global warming pollutants by 80% or more. MCEA will also
raise the concern of impacts to haze pollution in nearby Class I areas and to water
from exploitation of the tar sands.
Project Background
The Alberta Clipper pipeline project proposed by Enbridge (the “Alberta
Clipper”) is a 990 mile long portion of pipeline running from Hardisty, Alberta,
Canada, crossing the border in North Dakota and then through northern Minnesota
to a facility in Superior, Wisconsin. See enclosed documents from Enbridge
Company website. The Alberta Clipper will run along existing Enbridge right-ofway.
It will carry approximately 450,000 barrels per day (with ultimate capacity
of 800,000 barrels per day) of heavy crude oil from the Canadian oil sands (aka tar sands) to
refineries throughout the Midwest, including in Superior, Wisconsin. “The pipeline will be
integrated with and form part of the Enbridge Pipelines, Inc. mainline oil pipeline system.” See
partial copy of the “preliminary Information Package for the Alberta Clipper Pipeline Project
from Enbridge, October 2006, enclosed. At Superior, the Alberta Clipper pipeline will also
connect to a main line to Chicago. Enbridge’s materials note that the Alberta Clipper is intended
to resolve expected capacity constraints in getting tar sands crude to refineries in the Upper
Midwest and
“[w]ith supply from Western Canada oil sands developments expected to grow by as
much as 1.8 million barrels per day by 2015, the industry has asked for more capacity out
of the oil sands and into U.S. Midwest markets. The request is driven by oil sands
producers and refiners that have long development timelines and need assurance that
adequate pipeline infrastructure will be put in place in time to serve their projects.
Alberta Clipper is a direct response to that request.” (emphasis added.)
(emphasis added.) Enbridge Expansion information materials from Enbridge website, copy
enclosed.
A corresponding pipeline running in the other direction will begin in the Chicago, Illinois area,
and within the same right of way as the Alberta Clipper, will carry diluent from Chicago-area
refineries back to the tar sands. (the so-called Southern Lights project.) See Pipeline Routing
Permit notice, published by the Minnesota Public Utilities Commission (“PUC”).1 Enbridge
notes that the Southern Lights Project is an integral part of all the projects that together are to
“support the growth and development of the Canadian oil sands” and to help “ensure a North
American solution to energy reliability and the security of crude petroleum supply.” See
enclosed Enbridge materials.
Finally, the LSr Project is a pipeline, again running within the Enbridge right-of-way, that will
carry Canadian petroleum to an existing Enbridge tank farm in Clearbrook, Minnesota. As noted
in Enbridge’s own materials, the LSr Project is necessitated by the Southern Lights Diluent
project, because Enbridge’s existing pipeline from Canada to Clearbrook will be reversed and
used for the north-flowing diluent.
The tar sands crude carried by the Alberta Clipper will feed refineries in the Upper Midwest.
Currently refineries in the Chicago area, such as the British Petroleum (“BP”) refinery in Gary,
Indiana, are proposing to expand to meet the need for refining tar sands crude. Similarly, the
Murphy Oil refinery in Superior, Wisconsin is seeking to expand in order to take advantage of
the increased Enbridge capacity to carry tar sands crude to Superior and finished petroleum to
markets such as Milwaukee and Chicago. See articles in Reuters, May 29, 2007, and the
Milwaukee Journal Sentinel, September 13, 2007, copies enclosed. While Murphy Oil is seeking
1 As this document is an official, filed public document with a fellow government agency (and available on the
electronic PUC docket), MCEA is not providing a copy with this letter, but expects it to be part of your official
record. If you require a separate paper copy of the docket item, please notify me immediately.
a partner, it has purchased land for the expansion, has met with regulatory government agencies
seeking information regarding required permits, and has hired an engineering firm to plan the
expansion. Reuters, 5/29/07. As noted in the Reuters’ article, “Superior, Wisconsin is a major
shipping hub on the massive Enbridge crude oil pipeline system which would give the Murphy
plant a shipping cost advantage over refineries located further south.” Murphy Oil notes the
main reason for the proposed Superior expansion is the amount of Canadian oil that will be
collected and pumped via pipeline into the region in the future: “There are a lot of projects going
on, or going to go on in five or 10 years in Alberta, so most of that oil is going to have to find a
home somewhere.” Milwaukee Journal Sentinal, 9/13/07, quoting Murphy Oil, Superior
Manager.
The Enbridge/Murphy/BP proposals are only a portion of the Upper Midwest expansion of tar
sands pipelines connecting to new or expanded refineries. The Minnesota Pipeline is a series of
crude oil pipelines originating in Clearbrook, Minnesota, carrying tar sands crude to Koch’s
(Flint Hills) Pine Bend Refinery and Marathon Petroleum in the southern Twin Cities metro area.
The pipeline is operated by Koch Pipeline Company L.P. See, enclosed fact sheet from
Minnesota Pipeline Company LLC. The MinnCan Project is a current, large expansion of that
capcity in order to carry tar sands crude to the Twin Cities refineries. Id. The Minnesota
Pipeline system, including the new MinnCan pipeline, are fed by the Enbridge system where it
comes into Clearbrook. Enbridge clearly induces and enables the MinnCan pipeline and
increased refining in the Twin Cities area.
The TransCanada Keystone pipeline project through North and South Dakota environmental
review of which the State Department is also overseeing, will also carry tar sands crude. The
Keystone project is far enough along that it has had hearings in the Dakotas, is acquiring
property for rights of way, and has published an EA for comment. The Keystone project will
likely ultimately connect with2 the proposed Hyperion Refinery in Union County, South Dakota,
a project that is far enough along it has purchased property for the facility including a building to
serve as construction headquarters, and commenced rezoning for its facility. Hyperion has stated
that it is committed to completion of the refinery project. MCEA is also aware of tar sands
pipeline and refinery projects in process in Detroit, Michigan.
Requirements for EA and Environmental Impact Statement
The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., requires
preparation of an Environmental Impact Statement (“EIS”) examining the potential for
significant environmental effects prior to any major federal government action. NEPA requires
that the EIS and/or EA be prepared early in the decision process and that the public be given
opportunity to participate and comment. The Council on Environmental Quality (“CEQ”) rules
detail the requirements of and EIS or EA. 40 C.F.R. 1501.01 et seq. The Department of State
incorporates by reference, CEQ’s rules regarding environmental review. 27 C.F.R. 161.1.
2 Likely, because there is not currently a pipeline in the area of the proposed Hyperion refinery
and the Keystone will pass less than 30 miles away.
In examining the environmental effects from a particular action, the agency is required to
consider the context and severity of the action which in turn includes examination of the degree
to which the effects are likely to be highly controversial and whether the action is cumulatively
significant when analyzed in conjunction with other actions. 40 C.F.R. 1508.27. Environmental
effects to be examined include direct effects, indirect effects, cumulative effects, alternatives to
the proposal, and the effects of the alternatives, and potential mitigation. 40 C.F.R. 1502.14 and
1502.16. 40 C.F.R. 1508.25 requires the scope of an EA or EIS to include actions which may be
connected actions3, cumulative actions4, or similar actions.5
Courts have routinely held that agencies may not break a project or activity into components in
order to avoid the full range of environmental analysis and that cumulative impacts analysis is
necessary for all reasonably foreseeable results of the action under consideration. See e.g.
O’Reilly v. United States Army Corps of Engineers, 477 F.3d 225 (5th Cir. 2007); Great Basin
Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006); Native Ecosystems Council v. Dombeck,
304 F.3d 886 (9th Cir. 2002); Grand Canyon Trust v. Federal Aviation Admin., 290 F.3d 339
(D.C.Cir. 2002); Kern v. Bureau of Land Management, 284 F.3d 1062 (9th Cir. 2002); Fritiofson
v. Alexander, 772 F.2d 1225 (5th Cir. 1985); and Habitat Education Center v. Bosworth, 363
F.Supp.2d 1070 (E.D.Wis. 2005). See also One Thousand Friends of Iowa v. Mineta, 364 F.3d
890 (8th Cir. 2004).
Enbridge itself acknowledges that the pipeline projects—Alberta Clipper, Southern Lights, and
LSr are connection actions. The Alberta Clipper brings the tar sands crude, the Southern Lights
delivers diluent necessary for the extraction of the tar sands crude, and, as succinctly stated by
Enbridge, the LSr is necessitated by the Southern Lights project. Further, Enbridge and refinery
companies such as Murphy Oil and BP clearly state that the tar sands projects are all connected,
one necessitating the other. The pipelines have no reason to be built if the tar sands are not going
to be refined and burned in the U.S. The refineries’ planned expansions are not necessary
without the pipeline delivering this new source of crude. (This is clearly also true for the
MinnCan/Koch and Keystone/Hyperion projects.)
At a minimum, the entirety of the projects—pipelines and refineries and mines themselves, must
be examined as cumulative and indirect impacts, particularly on global warming.
Of considerable importance here, is the decision of the Eighth Circuit Court of Appeals in the
case Mid-States Coalition for Progress v. Surface Transp. Board, 345 F.3d 520, 549 (8th Cir.
2003). The court held that the agency must include analysis of the indirect impacts from
3 Connected actions are defined in the regulation as actions that automatically trigger other actions which may
require environmental impact statements; actions that cannot or will not proceed unless other actions are taken
previously or simultaneously; or actions that are interdependent parts of a larger action and depend on the larger
action for their justification. 40 C.F.R. 1508.25(a)(1).
4 Cumulative actions are actions that when viewed with other projects have cumulatively significant impacts.
Cumulative impacts are past, present and reasonably foreseeable future actions which may individually not have a
significant environmental impact, but cumulatively affect a resource or area. 40 C.F.R. 1508.7.
5 Actions, existing or reasonably foreseeable or proposed, that have similarities that provide a basis for evaluating
their environmental consequences together such as common timing or geography.
increased use of coal for energy in an EIS examining a railroad intended to deliver coal from the
Powder River Basin in Wyoming to midwestern and eastern utilities. The court noted that the
increased coal use was likely and foreseeable and the environmental effects of burning more coal
must be included in the EIS.
Similarly here, the Alberta Clipper, MinnCan, and Keystone pipelines (along with other tar sands
pipelines currently being built or planned in Minnesota and across the Upper Midwest) will
increase oil refining and keep petroleum prices lower than without it, with the obvious impact of
continuing to allow the increase of petroleum use.
Based upon these regulations and cases, the State Department must examine the full suite of
environmental effects, not just from the Alberta Clipper, but from the related, similar, and/or
connected pipelines, from the connected or at least induced refineries, and from the very use of
the tar sands themselves. The environmental effects that must be examined are the effect on
global warming from the increase in greenhouse gas emissions associated with refining the tar
sands and using the resulting petroleum, the destruction of carbon-sequestering boreal forests
and bogs in northern Alberta, and the subsequent release of carbon from those boreal forests and
bogs. (see detail below.) These effects are real and likely, all at a time when the world, the U.S.
in particular, must be sharply reducing the emissions of greenhouse gases like carbon dioxide in
order to avoid the very worse effects of global warming on the planet and the economy. To that
end, Minnesota Statutes, ch. 216H, set a goal of 80% reduction of greenhouse gas emissions by
2050.
6 Significant Environmental Effects
The Alberta Clipper and connected, indirect, and cumulative actions (mines, pipelines, refineries
and burning of the petroleum) related to the tar sands have enormous negative implications for
the environment. Of primary concern to MCEA is the energy use and global warming
implications of using (and enabling the use of) the tar sands. Extracting and refining tar sands
synthetic crude oil results in significantly increased carbon dioxide emissions over conventional
oil. One source provides that production of synthetic oil from tar sands adds 23% overall in
greenhouse gas emissions from conventional crude oil. Research by Kealan Gell, accessed
through, http://tothetarsands.ca/tar-sands-101/, copy enclosed. The increase comes primarily
from the fuel needed for the extraction of the tar sands (in most cases significant amounts of
natural gas) and in the fugitive emissions from the overall process. Id. Another article notes that
when all the tar sands have been extracted, refined and burned, they will result in the release of
around 112 billion tons of carbon dioxide, the equivalent to all fossil fuel and industrial
emissions worldwide over a period in excess of four years. Mitchell Anderson, It’s The Tar
Sands Stupid—Canada Home to Global Warming’s New Ground Zero, 12/04/07, copy enclosed.
A report by the Polaris Institute states that production of tar sands oil currently releases about
6 As I am sure you are aware, the Intergovernmental Panel on Climate Change (“IPCC”) finds that carbon dioxide
reductions of 80% are necessary by 2050 if the very worst effects of global warming are to be avoided or tempered.
http://www.ipcc.ch/ Again, due to the public nature of the IPCC documents and due to the fact that the U.S.
officially receives a copy, a copy is not provided herewith, but MCEA considers it part of the public record for this
matter.
three times more greenhouse gas emissions than pumping conventional oil, producing about 85.5
kg of carbon dioxide per barrel of tar sands oil. Polaris Institute, A Dirty Little Secret: Canada’s
Global Warming Engine, copy enclosed with U.S. mail version only. The exploitation of this
resource will result (and is resulting) in Canada violating its Kyoto Protocol obligations—an
obvious reason for shipment of the refining part of the equation off to the non-signatory U.S. Id.
and Canadian Centre for Policy Alternatives, Parkland Institute, and Polaris Institute, Fuelling
Fortress America: A Report on the Athabasca Tar Sands and U.S. Demands for Canada’s
Energy, copy enclosed, with U.S. mail version only.
While exploitation of the tar sands will generate up to one-third more greenhouse gas pollution
than conventional oil, the mining of the tar sands compounds the global warming effect because
it destroys hundreds, potentially thousands, of square miles of some of the best natural carbon
sequestration that exists. The tar sands are located in the boreal regions of northern Alberta, an
area covered with forest and bog. Removal of the trees and stripping away the bog takes away
the ability to store that carbon, but also ends up releasing already-stored carbon when the bogs
dry out. See Polaris Institute, A Dirty Little Secret. A recent report for the Minnesota
Department of Natural Resources (“DNR”), prepared by various researchers within state
government and the University of Minnesota, found that in Minnesota’s northern boreal forests
(the southern edge of the boreal ecosystem at risk from the tar sands) peatlands and mineral
wetlands stored vast amounts of carbon. On average, 516 tons of carbon are stored per acres of
peatland, by far the largest level of carbon sequestration of any organic system. 114 tons of
carbon are stored per acre of mineral wetland. Carbon Dioxide Budgets in Minnesota and
Recommendations On Reducing Net Emissions With Trees: Report to the Minnesota Legislature,
January, 1991, copy enclosed with electronic version of the letter only. It is reasonable to expect
that the tar sands wetlands store similar levels of carbon. Multiplying the 516 tons per acre by
acres destroyed in tar sands extraction adds up very quickly, compounding the extremely
negative carbon equation of tar sands exploitation. Environmental review of the Enbridge
projects should not ignore this very significant connected action impact.
Extraction uses a significant amount of natural gas, the importation of which will have connected
environmental effects. The MacKenzie pipeline project for the importation of natural gas to the
tar sands mines will have enormous negative impacts in pristine environments. See, Polaris
Institute materials. The magnitude of exploitation of the tar sands cannot be overstated.
The Alberta Clipper and cumulative, connected, and related projects such as refineries will also
have an impact in the Upper Midwest in terms of air quality. Refineries, while existing in the
Upper Midwest, have not been built or operated at the scale contemplated by the boom in tar
sands crude. Hyperion will be the first refinery in the Dakotas area. While the Twin Cities
metropolitan area has some refineries, they are planning large expansions as a result of the tar
sands pipelines delivery systems (Enbridge and others.) Murphy Oil in Superior will refine on a
scale never before seen in an area so close to the northern Great Lakes. The Twin Cities is
within the “hot spot” as indicated by the Minnesota Pollution Control Agency (“PCA”) for hazeproducing
pollutants that are adversely impacting the Boundary Waters Wilderness and
Voyageurs National Park Class I areas. See http://www.pca.state.mn.us/air/regionalhaze.html.
Minnesota is currently engaged in preparing a State Implementation Plan for haze pollution to
these Class I areas----and again sharp reductions in haze-causing pollutants nitrogen oxides and
sulfur dioxide are need. Both of these pollutants are emitted in large quantities during refining.
The Murphy Oil facility is very close to the Class I areas mentioned above and will have a direct
impact on Isle Royale National Park, also suffering the adverse effects of haze pollution, in Lake
Superior. These related and cumulative air quality impacts must be examined.
The tar sands mines are a significant adverse impact on water use and contamination. At a time
when global warming is adversely affecting the environment, tar sands exploitation uses vast
quantities of pristine northern waters---waters that are already in jeopardy from reduced
mountain snow cover and increased evaporation during warmer summer months. It takes more
than there barrels of water, on average, to process one barrel of synthetic tar sands crude (at the
mine, this does not factor in water needs for the diluent and refining processes.) Polaris Institute,
Fuelling Fortress America. Current levels of mining remove approximately 349 million cubic
meters of water from the Athabasca River each year, an amount twice the size of what the entire
city of Calgary, Alberta uses on an annual basis. Sierra Club Canada fact sheet, copy enclosed.
Again, this at a time when the Polaris Institute reports that Alberta rivers are shrinking in size
and volume (some due to tar sands extractions, much of it due to climate change.) Tailings
basins that take waste from the tar sands operations and the mine pits themselves, are a source of
contamination to area water supplies. There are recent reports of the fouling of the water
supplies for some native villages and for the nearby community of Fort McMurray. Again, all of
this environmental degradation is part and parcel of building pipelines to expanded refineries in
the U.S. One does not exist, or at a minimum does not exist at a particular level of degradation,
without the other.
Alternatives Analysis
Agencies must examine environmental effects from alternatives to the preferred project in an
EIS, including the so-called “no-build” alternative in order to give the public a full, comparative
picture of environmental alternatives and ways that effects can be avoided. An agency must
exercise independent judgment in defining the purpose and need of a project and cannot rely
exclusively on the statements and opinions of the applicant. See, Simmons v. Untied States Army
Corps of Engrs., 120 F.3d 664, 669 (7th Cir. 1997) (stating that "an agency cannot restrict its
analysis to those alternative means by which a particular applicant can reach his goals").
Alternatives analysis for an EIS requires full examination of a “no-build” alternative (meaning
status quo in an undeveloped state) and examination of a spectrum of “real” options, not just
those tailored to the desires of the Project proponents or tailored to decisions already made. See
Fuel Safe Washington v. Federal Energy Regulatory Commission, 389 F.3d 1313, 1324 (10th
Cir. 2004); Custer County Action Association v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 1002);
Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 812-13 (9th Cir. 1999).
In this instance that means that the State Department must examine effects from not building this
and other tar sands pipelines on the environment. Moreover, the EIS should include an
examination and analysis of ways in which increasing our refining of, and reliance on, tar sands
synthetic crude, will displace other, more environmentally sound and more sustainable energy
alternatives such as increased efficiency and demand side management for petroleum. These
represent the only real, currently viable and available long-term, alternatives to the warming of
the planet and avoiding the worst effects thereof.
Conclusion
The necessity of a comprehensive examination, through a full EIS, of all of the Enbridge pipeline
projects along with their connected, related and cumulative environmental effects, is clear.
Global warming is easily the most pressing and serious environmental and economic issue the
U.S. has ever had to deal with, and before the State Department (and related federal agencies
such as the Army Corps of Engineers) takes steps to enable more of the same in terms of global
warming pollution and its effects, it must analyze and discuss those effects in a public forum.
This examination should not be done lightly, should not be done in piecemeal fashion, and must
be analytical as well as comprehensive.
Thank you for the opportunity to submit comments on this issue of critical importance. Please
put me on any notice list for any communications about Enbridge projects in the future. Also,
please do not hesitate to contact me should you have any questions about MCEA’s comments.
Sincerely,
Janette K. Brimmer
Legal Director
cc: Jeffrey Izzo, U.S. Dept. of State
Robert Harper, Chippewa National Forest
Larry Hartman, Minn. Dept. of Commerce
Bret Eknes, Minn. Public Utilities Commission
Judge Eric Lipman, Minn. Administrative Law Judge (U.S. mail copy only)
