Canada’s National Energy Board was holding hearings that led to its 2010 approval of its portion of the pipeline. Flint Hills Resources applied for and won what is known as “intervener status” in the hearings, stating that because it was “among Canada’s largest crude oil purchasers, shippers and exporters, coordinating supply for its refinery in Pine Bend, Minnesota … [it had] “a direct and substantial interest in the application” to build the pipeline.

On Capitol Hill, the article prompted Waxman, whose first request that the Energy and Commerce Committee investigate Koch’s interest in Keystone XL was rebuffed, to repeat his plea. “There appears to be a direct contradiction between what Koch representatives told me and the assertion by a Koch subsidiary that it ‘has a direct and substantial interest’ in the Keystone XL pipeline,” he wrote in a letter to committee leaders. Koch Industries fired back almost immediately in a post at KochFacts.com, which read:

We have detailed publicly on numerous occasions (and to InsideClimate directly) why Flint Hills Resources Canada LP, a Koch subsidiary, applied for “intervener” status with the Canadian National Energy Board. An intervener in a NEB proceeding is entitled to gain access to information about the progress of a particular matter, in this case the “application” concerning the Keystone XL Pipeline project. Many others also applied and were granted intervener status in exactly the same way — including individual citizens, members of various First Nation groups, businesses, and environmental activists similar to Mr. Sassoon and InsideClimate.

… When a party applies to be an intervener, they formally state that they have an “interest” in the application that is being considered. That use of the word “interest” means, by first definition, curious or paying attention. But InsideClimate distorts that meaning as if it meant a financial interest or stake — a secondary but altogether different meaning of the word.

Around the same time that Kochfacts.com posted this missive, Koch launched its Google and Facebook ad campaign against Sassoon and InsideClimate.

Split Decision

Do Koch’s actions amount to media intimidation? Yes and no. InsideClimate deserves immense credit for digging where no other news outlet thought to dig. It exhibited the kind of dogged, investigative instinct that is too often lacking these days among its peers in the “mainstream media,” drawing Congressional attention in the process. But it failed to make its case.

The assertion in Sassoon’s February article that the Koch brothers are “positioned to be big winners” if the pipeline is approved is based on two pieces of circumstantial evidence: Koch’s role as a major player in Canadian oil industry and the 2009 market analysis that Keystone XL would drive up oil prices. That doesn’t mean he’s wrong. In fact, he’s probably right that Koch will benefit financially if the pipeline is built. But believing that and proving it—and establishing that Koch will benefit in a way that really matters—are two different things and it’s a distinction that gets to the heart of the standards of good journalism.

InsideClimate never made it clear who wrote the “market analysis” or what it was. Sassoon’s story, which linked to an Associated Press article that mentioned it, says it was “conducted by” TransCanada, while Feldman’s piece says it was “conducted for” TransCanada. In fact, the market analysis was part of the application to build and operate Keystone XL that TransCanada submitted to Canada’s National Energy Board in February 2009, and the original document is available in the board’s database. InsideClimate misrepresents what that document says in a small, but significant, way.

Sassoon reported that the estimated price spike crude would send at least $2 billion “from American consumers to Canadian and multinational oil interests.” What it actually says is that the spike would increase the revenue of the Canadian producing industry.

Feldman was clear about this in her piece, but tacked on another sentence that is problematic: “But the entire industry—including the refineries and shipping businesses where Koch Industries has concentrated its efforts—would also profit.” Feldman supports the statement with a quote from Danielle Droitsch, a senior adviser to the Natural Resources Defense Council, an environmental organization, saying that, “Keystone XL is about the whole industry.” That may be true in some senses, but it’s still a generalization. The idea that there will be no losers in the oil industry—that everybody will profit—is implausible.

And even if the entire oil industry is “well positioned” to benefit from Keystone XL’s approval, the question becomes, why focus on Koch? This was an issue that Waxman faced on Capitol Hill. When House Republicans rebuffed his request to investigate Koch, “he offered to expand his investigation to include all energy companies that might benefit from Keystone XL so as not to single out Koch,” InsideClimate reported.

Curtis Brainard is the editor of The Observatory, CJR's online critique of science and environment reporting. Follow him on Twitter @cbrainard.