With the State Department review process of the Keystone XL pipeline once again delayed (this time, while courts review routing legislation in Nebraska), pipeline supporters in Congress have been working on legislation to force approval. The House Energy and Commerce committee has crafted legislation that would require approval of border-crossing pipelines (and electric transmission facilities) within 120 days of completion of environmental review, unless the State Department finds them to be contrary to the national interest. (The bill does not mention Keystone XL specifically.)
The Republican-controlled House of Representatives is expected to vote on the measure this week. (While popular in the House, support for a legislative approval of Keystone XL in the U.S. Senate has fallen a few votes short of the 60 votes needed. I wrote about that legislative effort here.) In late 2011, after a dispute over the pipeline route through Nebraska had caused delays to the permit process, congressional Republicans did manage to pass a 60-day deadline for approval of the Keystone XL pipeline. (President Barack Obama had threatened to veto that legislation, too, however, it was attached to the renewal of a payroll tax cut that was set to expire and the President signed the bill rather than preside over a sudden tax increase.) However, at that time, the State Department said it could not complete its environmental reviews (required by federal law) in time to comply with the deadline. As a result, it denied the initial permit for the pipeline, but invited TransCanada to apply anew. The company applied with a new route that avoids some of the sensitive lands in Nebraska. That route was approved under a Nebraska permitting process that one court has struck down as invalid under the state’s constitution, because it did not go through an independent commission. The governor has appealed the ruling, but the State Department is reluctant to move forward with a permit decision until the appeal is decided in Nebraska.
Below is the White House statement today threatening to veto the House bill, known as the North American Energy Infrastructure Act:
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
June 24, 2014
STATEMENT OF ADMINISTRATION POLICY
H.R. 3301 – North American Energy Infrastructure Act
(Rep. Upton, R-Michigan, and 20 cosponsors)
The Administration strongly opposes H.R. 3301, which would require the specified Secretary to issue a “certificate of crossing” for any cross-border segment of an oil pipeline (Secretary of State) or electric transmission facility (Secretary of Energy) within 120 days after the completion of the environmental review, unless the Secretary finds that the cross-border pipeline or electric transmission facility “is not in the public interest of the United States.”
The bill’s 120-day approval requirement would circumvent the current authority for issuing Presidential Permits for cross-border pipelines and transmission facilities provided by Executive Orders 13337 and 10485, as amended, which allow for the full consideration of the complex issues raised by the building of such infrastructure. That process dates back through many Administrations and has effectively addressed cross-border permitting decisions in a manner that serves the national interest.
H.R. 3301 would impose an unreasonable deadline that would curtail the thorough consideration of the issues involved, which could result in serious security, safety, foreign policy, environmental, economic, and other ramifications. By preventing the opportunity for the necessary assessment of all factors relevant to the national interest, the bill would create significant policy risks and create legal uncertainty for permitting applicants. Additionally, the bill would prevent assessment of whether modifications to border-crossing pipelines or electric transmission facilities are in the national interest, which is provided for through the current process.
H.R. 3301 would also raise serious trade implications by eliminating the current statutory requirement that the Department of Energy authorize orders for exports and imports of natural gas to and from Canada and Mexico.
Because H.R. 3301 would circumvent longstanding and proven processes for determining whether cross-border pipelines and electric transmission facilities are in the national interest by removing the Presidential permitting requirement, if presented to the President, his senior advisors would recommend that he veto this bill.