Congress leaps before it looks at Keystone pipeline permit review efforts

This post contributed by Terence Houston, ESA Science Policy Analyst

H.R. 3630, the Middle Class Tax Relief and Job Creation Act of 2011, which comprises an extension of the payroll-tax cut and unemployment benefits, also  includes a provision intending to fast-track approval of the Canadian Keystone XL Pipeline project.

The move is the latest in a series of unprecedented maneuvers by the U.S. House of Representatives majority leadership to sidestep traditional administrative rulemaking processes and environmental assessment reviews in favor of enacting reforms through legislative fast-tracking.  This year, the House has sought to delist several endangered species, through legislation curtailing the scientific review process, a move which prompted the Ecological Society of America, among numerous other scientific and environmental organizations, to jointly express their concerns in writing.

The House’s latest legislative attempt to side-step administration review procedures requires the U.S. Department of State to make a determination on whether to allow the permit of the Keystone pipeline within 60 days of the legislation’s enactment. The Obama administration has threatened to veto the measure in its current form.

Environmental groups have long protested the Keystone XL pipeline route as its construction would disturb the natural habitats of several endangered species. According to the National Wildlife Federation, the original proposed pipeline route through Nebraska would parallel the migratory route of the whooping crane, crossing through the state’s Platte River, which functions as a natural migratory “rest stop” for the birds when they migrate to Canada.

On Nov. 10, the Obama administration postponed a decision on the pipeline until early 2013 due to opposition from environmentalists and more importantly, bipartisan concern from Nebraska officials (including the state’s Republican governor) that the pipeline’s path would align with  the Nebraska Sandhills, which surround the aquifer that provides most Nebraskans’ water supply. In lieu of these concerns, Gov. Dave Heineman signed into law legislation that provides new responsibilities to the Nebraska Department of Environmental Quality (NDEQ).

The first application of the new law will be the development of a supplemental environmental impact statement for the proposed TransCanada Keystone XL pipeline. The new law assigns NDEQ to work with the U.S. Department of State throughout the review. NDEQ has begun negotiations with the State Dept. to establish a Memorandum of Understanding detailing how NDEQ’s environmental review process will fit into the federal review process.

Since the Nebraska law was signed, many state policymakers have back-tracked their opposition to federal efforts to speed up approval of the pipeline. In fact, several Nebraska lawmakers have reversed course, a move that has triggered consternation among Nebraskans, according to a recent Reuters article. Rep. Jeff Fortenberry (R-NE) was the only one among his state’s Congressional delegation to vote against H.R. 3630, which contained the Keystone pipeline provision.

The State Dept. issued a statement contending that fast-tracking approval of the Keystone pipeline would force the administration to disapprove the permit: “The State Department has led a rigorous, thorough, and transparent process that must run its course to obtain the necessary information to make an informed decision on behalf of the national interest. Should Congress impose an arbitrary deadline for the permit decision, its actions would not only compromise the process, it would prohibit the Department from acting consistently with National Environmental Policy Act (NEPA) requirements by not allowing sufficient time for the development of this information. In the absence of properly completing the process, the Department would be unable to make a determination to issue a permit for this project.”

TransCanada supported the Nebraska law and declared its intention to propose a new route. However, specific details of the new route have not been provided to the NDEQ by TransCanada. So, in effect, through H.R. 3630, Members of Congress and the administration are being asked to sign off on a permit for the project before they know the specific details of it and before the NEPA process has been completed.

Jane Kleeb, Executive Director of Bold Nebraska, was instrumental in uniting a group of local farmers, ranchers and environmental organizations to oppose fast-tracking the approval of the Keystone pipeline without proper review. She recently reiterated her concerns in an article on the organization’s website: “As long as they keep pushing an arbitrary deadline, the only thing that is ‘shovel ready’ is the death of the Keystone XL pipeline,” she asserted.

Proponents of the pipeline point out that its approval could foster job creation. Unfortunately, there are some in Congress who seem to prioritize scoring political points by opposing the efforts of election year opponents over a thorough review and ample consideration of environmental and safety concerns. Lawmakers, particularly those who advocate for state rights, should let the collaboration between the State Dept. and NDEQ run its course before pushing unwarranted and ill-considered federal intervention.

Photo Credit: shannonpatrick17

Author: Terence Houston

Science Policy Analyst for ESA.

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