As the public comment period for the proposed Keystone XL pipeline draws to a close, President Obama’s ruling on TransCanada’s “Presidential Permit” application is expected in the next month. Noise over the proposal has been swayed to and fro by promises of thousands of jobs and, on the other hand, threats of serious environmental degradation. What’s been overlooked, however, in the heated debate over economy and environment, is the process behind the President’s approval of the project. Complex legal machinations, including the (current and second) 30-day comment period, are the result of previous litigation brought by environmental groups and small, local communities. The question we should be asking ourselves is deeper, even, than the conflict between development, climate, and diplomatic relations with Canada. It serves to exhibit some of the shortcomings of environmental impact assessment and protection in the United States, and while Keystone itself may be an immediate concern, a longer-term question is whether future projects may be forced through a lax or prejudiced environmental review process.
In September 2008, TransCanada applied to the State Department to cross the international US-Canada border to transport crude from Alberta’s oil sands to Gulf Coast refineries in the United States. TransCanada expected to supply almost 850,000 barrels of oil a day upon completion of the project, which would happen in two phases. The first would connect oil tanks in Alberta to refineries in Texas, a 435-mile project. The second, Keystone XL, would also originate in Alberta, but would extend 1,179 miles to Steele City, Nebraska.
Under the National Environmental Policy Act (NEPA), environmental impacts are reviewed through the production of an environmental impact statement (EIS). NEPA doesn’t prohibit environmentally harmful activities; it only mandates that impacts be identified and taken into consideration before execution. The State Department is charged with considering the project’s environmental impact, effects on U.S. energy independence, economic benefits, homeland security, and relationship to U.S. goals of sustainability and fossil fuel reduction. In November 2011, the State Department responded to state and community concerns in Nebraska, mostly centered on the pipeline’s environmental impact on the Sand Hills region. The Sand Hills are a dune formation that recharges the Ogalalla aquifer, and considered “environmentally sensitive” for their permeable soil and shallow groundwater. Within a week, TransCanada had reached an agreement with the Nebraska Department of Environmental Quality to avoid the Sand Hills in the construction of Keystone XL. Nonetheless, the State Department announced a delay in the permit review, pending its own investigation into the question of the Sand Hills area.
Congress, in December, frustrated by the State Department’s slow progress, modified the Temporary Payroll Tax Cut Continuation Act of 2011 to include a codicil that demanded that Secretary of State Ken Salazar (a CC alum, by the way!) approve the project within 60 days. Congress’ plan backfired when the Department of State, with the President’s backing, denied the Keystone XL permit and blamed insufficient time under the 60-day deadline. In May and September 2012, TransCanada reapplied to the State Department for a permit allowing Keystone XL’s construction (with new routes planned through Nebraska) and submitted the alternative routes to Nebraska’s Department of Environmental Quality for approval.
The State Department re-ignited the NEPA process following TransCanada’s 2012 re-application, a review that will amend the original 2011 EIS and consider the proposed alternative routes. The State Department, however, has faced continual challenges from Congress, which has tried to force Keystone’s approval through legislation demanding such realization. The State Department, in testimony responding to legislative maneuvering, contended that it overrode federal authority in environmental and land use management questions, as well as trans-border foreign policy and national security considerations best assessed by the State Department.
Keystone XL has been considered for over four years, guided by environmental precedents in the judiciary, legislative, and executive branches. The increasing involvement of Congress and the NEPA process established in the Supreme Court and implemented by the federal government continues to cloud an already opaque process. How Keystone XL’s approval or disapproval plays out has more at stake than alternative routes or construction of facilities; indeed, it brings under review not just environmental impact, but the political impact associated with vertically and horizontally shifting power between local, state, and federal governments.