Congressional Bills Seek to Cut Public Scrutiny and Participation Out of Keystone XL Decision

spilled oil

The Keystone XL pipeline is a controversial project that would transport tar sands oil (which is more corrosive than crude oil) from Canada through America's heartland to Texas, creating air, water, and public health risks in its wake. In the past two weeks, lawmakers have introduced bills in both the House and Senate to strip the decision on the Keystone XL pipeline away from the Obama administration. The bills, if passed, would short-circuit the regulatory permitting process and prevent the public from voicing their concerns about the public health and environmental risks of the pipeline.


Traditionally, the process of approving trans-border pipelines (including TransCanada Corp's Keystone XL pipeline) has been handled by the State Department because the projects are international and are regulated by at least two sets of standards and laws. The U.S. regulatory process requires federal agencies to review the environmental impacts of a proposed pipeline project and to publish their assessments for public comment before a decision is made. Environmental organizations and communities living near the proposed path of the pipeline have raised significant concerns about the potential risks the proposed project presents to the health and safety of communities the pipeline will pass through.

On March 1, the State Department released its draft Supplemental Environmental Impact Statement (SEIS) on the pipeline. The public has until April 22 to comment on the environmental impact statement. President Obama is not expected to make a final decision on whether to approve the pipeline until after the State Department concludes its review process, meaning that a final decision would probably not be reached for several months.

Legislative Shortcut

However, legislators in both the House and Senate seem unwilling to wait for the review and public comment period to play out and have instead proposed bypassing the normal permitting process. On March 14, Sens. John Hoeven (R-ND) and Max Baucus (D-MT) introduced legislation (S. 582) that would enable Congress to approve the Keystone XL without President Obama's signature. The next day, Rep. Lee Terry (R-NE) introduced a similar measure (H.R. 3) in the House.

Hoeven believes the Senate bill has the support of more than 50 senators, though 60 votes would be needed for passage. Rep. Fred Upton (R-MI), chairman of the House Energy and Commerce Committee, said he expects a vote on the bill by the end of May.

This congressional effort to get around the regulatory process is at odds with public opinion. A new national poll found that the majority of Americans oppose congressional intervention to approve the Keystone XL. The study, commissioned by the Center for Biological Diversity, finds that over half of Americans surveyed are concerned about the pipeline's impact on water and wildlife.

"Americans take a pretty dim view of Congress, and most don't want it anywhere near the Keystone project," said Jerry Karnas in the Center for Biological Diversity's press release. "Keystone XL is a dangerous project for wildlife, climate and our environment. It deserves to be carefully considered by those who understand the long-term impacts, not hastily decided by politicians who're easily swayed by the oil industry's army of lobbyists."

Unfortunately, this is not the first time Congress has tried to bypass the permitting process and pressure President Obama to approve Keystone XL. In late 2011, Republicans inserted language into a payroll tax cut bill that gave the president a 60-day deadline to make a decision on whether to approve the pipeline. In January 2012, at the end of the deadline, Obama rejected the Keystone XL, saying political pressure from Congress resulted in a rushed process that did not allow the State Department to gather all the information it needed to consider before approving the permit, including public comments.

In March 2012, Congress tried again when Hoeven introduced an amendment to a transportation bill (S. 1813) designed to renew funding for highway and infrastructure projects. The amendment would have fast-tracked the Keystone project and eliminated the president’s authority. It received 56 of the 60 votes required to pass and was not adopted.

The public health and safety risks associated with the Keystone XL necessitate an open permit process with public engagement and without political meddling.

Public Health and Environmental Concerns

Communities near the proposed path of the pipeline and environmentalists are concerned about the potential risks of spills and water and soil contamination to states in the Midwest and the possible health effects of increased air pollution on communities living near refineries along the Gulf. The overall effects of increased greenhouse gas emissions on climate change are also a significant concern. These stakeholders believe that the Draft SEIS significantly underestimates the environmental risks from the pipeline and are especially concerned about the State Department's conclusion that the pipeline would "not likely result in significant adverse environmental effects."

As proposed, the pipeline would cross five U.S. states (Montana, South Dakota, Nebraska, Oklahoma, and Texas) and several major rivers – including the Missouri, Yellowstone, and Red Rivers – and aquifers that supply millions of Americans with drinking water and irrigated farmland. The construction and operation of the pipeline would bring significant risks to the lives and livelihoods of those living along its route and near the refineries to which the tar sands outflow would be directed.

TransCanada's Keystone I pipeline, which runs from Alberta, Canada, to refineries in Illinois, leaked 14 times during its first year of operation between 2010 and 2011, showing that these concerns are not simply theoretical. One of the largest spills occurred in North Dakota in May, when 21,000 gallons of tar sands oil leaked from the pipeline, temporarily shutting it down. Experts warn that spills would be more likely with the Keystone XL pipeline because of the more corrosive consistency of the tar sands oil that would flow through the pipeline.

Other government and expert studies show that tar sands oil produces three times more greenhouse gas emissions than crude oil, which leaves the State Department's assessment very low relative to other scientific studies. The EPA has estimated that Keystone XL would increase annual carbon emissions by the equivalent of seven coal-fired power plants operating continuously.

Environmentalists are also disputing the State Department's claim that the pipeline would be "unlikely to have a substantial impact on the rate of development of the oil sands." This conclusion directly conflicts with statements made by the oil and gas producers themselves. For instance, the Canadian Association of Petroleum Producers stated that Keystone XL is necessary to increase the expansion of tar sands (i.e., without it, production could not expand). And Standard & Poor's reported that future growth of tar sands will be at risk if new pipelines are not approved.

Weigh In! Make Your Voice Heard!

Members of the public can weigh in by submitting comments, questions, and concerns to the State Department as part of the permitting process. Send your comments to by April 22. At the end of the public comment period, State will prepare a Final Supplemental Environmental Impact Statement, which will assess whether the pipeline "serves the national interest." Though the Final EIS will not determine whether the project gets approved, its content will be a critically important part of the decision. For this reason, it is vital for people to make their voices heard in this critical debate.

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