On Thursday, November 13, 2014, the House will begin consideration of H.R. 5682, a bill to approve the Keystone XL Pipeline, which was introduced by Rep. Bill Cassidy (R-LA) on November 12, 2014. The bill was referred to the House Committee on Transportation and Infrastructure, in addition to the Committees on Energy and Commerce and Natural Resources.
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H.R. 5682 authorizes the construction, connection, operation, and maintenance of the Keystone XL pipeline. The bill deems the Final Supplemental Environmental Impact Statement issued by the Secretary of State in January of 2014 sufficient to satisfy all the requirements of the National Environmental Policy Act of 1969 (NEPA) and any other federal law that requires federal agency consultation or review.
H.R. 5682 retains in effect any federal permit or authorization that is issued for the Keystone XL pipeline before the bill’s enactment. H.R. 5682 also requires that any federal legal challenge to the pipeline be subject to review on direct appeal only to the U.S. Court of Appeals for the D.C. Circuit.
In September of 2008—more than six years ago—Canadian pipeline company TransCanada filed an application with the Department of State to construct the Keystone XL pipeline across the U.S.-Canada border.[1] The pipeline was intended to transport oil from the oil sands region of Alberta, Canada to Midwest and Gulf Coast refineries.[2] Though states, not federal agencies, generally have authority to site oil pipelines, a Presidential Permit is required for pipelines that connect the U.S. with a foreign country.[3] The Secretary of State is authorized to make decisions regarding Presidential Permit applications on the President’s behalf.[4]
A Presidential Permit is issued only upon a determination that the proposed project would serve the “national interest,” taking into account a number of factors including the environmental impact of the project, the economic benefits the project would bring to the U.S., and the impact the project would have on broader foreign policy objectives.[5] In addition to soliciting feedback from the public, the State Department is required to consult with relevant state and federal agencies in making the “national interest” determination.[6]
In addition, NEPA generally requires federal agencies to conduct an Environmental Impact Statement (EIS) to analyze the environmental impacts of any major federal action that will significantly affect the environment.[7] The State Department was required to conduct this analysis for Keystone XL, and completed the lengthy environmental review in August of 2011, issuing a final EIS that found that the pipeline would have limited adverse environmental impacts during construction and operation.[8]
Despite these findings, President Obama announced in November of 2011 that a decision on Keystone XL would not be issued until 2013.[9] In response, legislation was enacted requiring the issuance of a permit for the project within 60 days, unless the President determined that the project was not in the national interest.[10] In January of 2012, President Obama denied the Presidential Permit request, requiring TransCanada to begin its application process anew.[11]
TransCanada reapplied with the State Department in May of 2012, triggering a new national interest determination and NEPA review process.[12] The new application was for 875 miles of pipeline, as TransCanada in the meantime had begun construction on a portion of the originally proposed pipeline solely within the U.S. that did not require a Presidential Permit.[13] The new application also contained a reroute of the pipeline, avoiding environmentally sensitive areas in Nebraska.
Nebraska Governor Dave Heineman approved the proposed reroute of the pipeline through the state in January of 2013.[14] In addition, the State Department issued a Final Supplemental Environmental Impact Statement in January of 2014, confirming once again that the pipeline would have limited adverse environmental impact.[15] Despite these actions, the Administration has refused to issue a decision on whether to grant the President Permit for the Keystone XL pipeline.
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[1] Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Dec. 2, 2013 at 1.
[2] Id.
[3] Id. at 5.
[4] Id. at 6.
[5] Id.
[6] Id. at 7.
[7] Id.
[8] Id. at 8. Construction of the pipeline was actually the “agency preferred alternative” among the options studied, including 14 major route alternatives and the option not to move forward with the project. U.S. Department of State, Final Environmental Impact Statement for the Proposed Keystone XL Project, Executive Summary, Aug. 26, 2011 at ES-14. The EIS also noted the 57 project-specific safety standards that had been established for the pipeline, in addition to those actually required by law. Id. at ES-6.
[9] House Energy and Commerce Committee: Keystone XL: #TimeToBuild.
[10] Id. See Temporary Payroll Tax Cut Continuation Act of 2011 (P.L. No. 112-78). Dec. 23, 2011.
[11] House Energy and Commerce Committee: Keystone XL: #TimeToBuild.
[12] Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Dec. 2, 2013 at Summary.
[13] Id.
[14] House Energy and Commerce Committee: Keystone XL: #TimeToBuild.
[15] Id.
A CBO cost estimate is not available at this time.
For questions or further information contact the GOP Conference at 5-5107.