Keystone Pipeline: Crossing Borders and Party Lines?

Trans Canada Keystone Oil Pipeline By: shannonpatrick17 CC BY 2.0

By: Chelsea Morin

After six years of failed attempts made by House Republicans and Democrat blocking efforts, Congress has finally acted together to bring the Keystone XL Pipeline legislation to a vote. The catalyst? A Louisiana Senate runoff election that is set to take place December 6 between Senator Mary Landrieu (D) and Representative Bill Cassidy (R). These Louisiana politicians raced to get the Keystone Pipeline approved because of its popularity among residents and the economic impact that it is expected to have on the state.

As the name denotes, the Keystone Pipeline is a pipeline that would double the flow of heavy tar sands oil, around 830,000 barrels per day, from Canada down to Gulf Coast refineries. The pipeline would be expanded to transport the Canadian crude oil across the United States, meeting the demands of U.S. markets while also providing access to developing domestic oil supplies from Montana and North Dakota.  As a result, U.S. reliance on foreign oil supplies from Venezuela, Mexico, the Middle East, and Africa is expected to decrease. Last year, the State Department issued a report presenting its findings that the pipeline construction would contribute to the U.S. approximately 42,100 jobs, $2 billion in earnings, and increase the U.S. GDP by $3.4 billion. Additionally, the report found that Keystone XL would have little impact on climate change.

The State Department addressed environmental concerns in its report, stating that the corrosiveness of the tar sands oil is not the reason behind past pipeline bursts and leakage. Rather, such issues are caused by faulty valves and seals. To prevent any environmental damage, TransCanada has willingly agreed to 57 new safety procedures and plans to conduct inspections every two weeks on the pipeline to ensure that the valves and seals remain secure. TransCanada is also wholly responsible for any and all damage caused by the pipeline during maintenance and construction, which shows that the potential for neglect is low. Currently, crude oil is transported by rail, barges, and tank trucks – far more dangerous and expensive methods than Keystone XL.

Over the years, many have questioned whether Congress even has the power to approve the pipeline. In a 1968 Executive Order, President Lyndon B. Johnson officially vested the State Department with the permitting authority for “border crossing facilities,” which specifically included oil pipelines. However, Congressional Research Services (CRS) settled this issue and explained that, “if Congress chose to assert its authority in the area of border crossing facilities, this would likely be considered within its constitutionally enumerated authority to regulate foreign commerce.” Congress’s power to regulate foreign nations is found in the Commerce Clause of Article I, Section 8, Clause 3 of the Constitution.

At the state level, Nebraska is also questioning the constitutionality of the pipeline’s approval. A Lancaster County District Judge recently struck down a state law that authorized Nebraska’s Governor Dave Heineman to approve Pipeline XL’s route through the state. In the opinion, the judge declared the Governor’s action “null and void” because the new law unconstitutionally stripped the Nebraska Public Service Commission (“PSC”) of its permitting and routing authority granted to it by the state’s Major Oil Pipeline Sitting Act (“MOPSA”). The judge found that the Legislature could not “divest the PSC of jurisdiction . . . and vest such power in another governmental agency, body of government, or branch of government, except the legislature.” While the Legislature is permitted to enact “specific legislation” that preempts the PSC’s control, it “cannot absolutely and totally abandon or abolish constitutionally conferred regulatory control.”  The law’s defender, Nebraska Attorney General Jon Bruning, plans on appealing the decision. In the meantime, the Nebraska legislature may restore the PSC with the authority to rubber-stamp the route.

On November 14, the House passed the Keystone XL legislation (for the ninth time) that was introduced by Representative Cassidy. The legislation simply provides that TransCanada, a Canadian energy company, “may construct, connect, operate, and maintain the pipeline and cross-border facilities” as described in its application submitted to the State Department in 2012. Over on the Senate side, Senator Landrieu, motivated by the desire to keep her senate seat, brought her identical legislation up for debate, stressing the need for bipartisanship action as well as the pipeline’s economic benefits. On November 18, the legislation fell one vote short of the requisite 60 votes to overcome a filibuster.

Does the bill’s failure in the Senate mark the end of Keystone? As for the President’s approval, Keystone XL’s fate looks anything but hopeful, unless the new Senate is able to secure the requisite 67 votes for the bill’s passage. Regarding the attempts to end-run presidential approval, White House press secretary Josh Earnest told reporters that “[t]he administration . . . has taken a dim view of these kinds of legislative proposals in the past . . . [which] has not changed.”  Sources say that pressure exerted by the environmental activists has been the primary reason for the President’s stance on the pipeline matter. Over the years, President Obama has opposed the pipeline’s development by rejecting permit approval on multiple occasions and lobbying the Senate to reject amendments for the bill’s congressional approval. These actions have infuriated the pipeline’s most avid supporters, which include Republicans, moderate Democrats, oil companies, labor unions, and the Canadian government. Terry O’Sullivan, General President of the Laborer’s International Union of North America, expressed his view that “the project is not just a pipeline, but is a lifeline for thousands of desperate working men and women. The administration chose to support environmentalists over jobs – job-killers win, American workers lose.”

Soon-to-be Senate Majority Leader Mitch McConnell (R – KY), implied that the fight to pass the legislation is far from over. McConnell made it clear that the incoming Republican-led Senate will revisit the legislation as soon as it convenes early next year. Fortunately, the bill is expected to pass with at least 63 votes and supporters are confident that they can muster up the additional 4 votes to secure a veto-proof bill. Keystone XL will provide the U.S. economy with thousands of jobs, contribute billions towards the U.S. GDP, ensure energy security, and serve as a safe method of crude oil transportation. Thus, Keystone XL is more than a political pawn in the hands of legislators –it’s a device that crosses party lines, guaranteeing American jobs with relatively little to no danger to the environment.

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