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States Have Ultimate Say on Keystone Pipeline's Route, Federal Memo Suggests

Advocates say a federal memo that surfaced this week proves that states have the authority to regulate or reroute the controversial oil sands pipeline

Apr 1, 2011
oil pipeline

WASHINGTON—For close to a year, Nebraska activists have hounded their state elected officials to act on behalf of constituents feeling threatened by a Canadian company's proposal to construct a controversial tar sands oil pipeline.

But most state legislators have repeatedly shooed them away, claiming they have no such authority to regulate or route oil pipelines in the Cornhusker State. That task, they repeatedly insist, is up to Congress and other federal authorities.

Now, however, the advocates claim they have received solid proof — in the form of a six-page memo from the Congressional Research Service — revealing that the governor, the attorney general and state legislators do indeed have that power.

Advocates are convinced the federal document, which "surfaced" at the Nebraska Statehouse six months after it was written, proves that state authorities could be taking the initiative to protect residents' property rights and ensure that an oil pipeline doesn't harm ecologically sensitive landscapes, the economy or the public's health.

Jane Kleeb is director of the advocacy coalition Bold Nebraska, which has spearheaded a grassroots effort to halt a new $7 billion pipeline. At issue is Keystone XL, a 1,702-mile pipeline that Calgary-based TransCanada wants to construct from tar sands mines in its home province of Alberta to oil refineries along the Gulf of Mexico.

It has the potential to double — or perhaps triple — the amount of diluted bitumen flowing to this country from its northern neighbor at a time when the issue of energy security has become a matter of national focus. Between 2000 and 2010, U.S. imports of oil sands crude grew five-fold from 100,000 to 500,000 barrels per day. That number could balloon to 1.5 million barrels per day by 2019.

"Our message to them is crystal clear," Kleeb told SolveClimate News in an interview. "They have no more wiggle room. We have a federal memo saying that this is the state's responsibility; essentially it's their duty. We are hoping they now start to take their roles and responsibilities seriously. For them to turn their back on landowners is shameful."

How the Memo Came to Light

Ken Winston, policy director with the Nebraska Sierra Club, told SolveClimate News a senator's staffer handed him the memo March 22 when he was making his regular rounds at the statehouse.

"I was shocked when I found it was dated last fall," Winston told reporters during a Wednesday teleconference organized in Lincoln, Neb., by a handful of advocacy groups. "My initial reaction was outrage."

In a follow-up interview with SolveClimate News, Winston said it was ridiculous that some senators told him they didn't comprehend the meaning of the researchers' findings.

"It's plain English," he said. "These are clear and declarative sentences ... saying the state legislature is required to act. State legislators seem to have sat on this information. This is bad faith. It's not the way we do business in the state of Nebraska."

The memo, written by a legislative attorney and an energy specialist at the Congressional Research Service, is dated Sept. 10, 2010. It is addressed to Nebraska Rep. Lee Terry, a Republican elected to his seventh congressional term last November, who evidently posed the initial question. The service, part of the Library of Congress, helps federal lawmakers by providing comprehensive legislative research and analysis.

"You have asked CRS to provide you with background information on the federal role in the development of pipelines for the transmission of oil in the United States," the two researchers wrote in their introductory paragraph.

Five pages later, the memo states: "The federal government does not have siting authority for oil pipelines, even interstate pipelines." A few sentences later, it continues: "In the absence of federal government siting authority, state laws establish the primary siting authority for oil pipelines, including interstate oil pipelines. In Nebraska, there do not appear to be any permitting requirements that apply specifically to the construction and operation of oil pipelines."

TransCanada Downplays Memo's Significance

"This memo is nothing new," TransCanada spokesman Shawn Howard told SolveClimate News in response to a query. "This information has been debated back and forth for years."

He pointed out that TransCanada collaborates with local, state and federal government officials on aspects of pipeline construction such as emergency response planning and with local governments on issues such as road building and repairing.

"We follow the processes put in place by each state regarding negotiating and obtaining easements," Howard said. "Some states have set up processes for siting pipelines, but Nebraska has not."

"TransCanada puts a lot of effort into building relationships with landowners and communities where our pipelines operate," he continued, adding that the company’s U.S. history dates back 60 years.

"If legislation changed, it would change what we may be required to do, however, it would not change the way that we treat landowners. We believe we have done an excellent job in working with landowners. We also recognize that some people may not agree with something, which is why each state has established independent processes to resolve these issues."

Where the Pipeline Stands at State Department

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