Approval of Keystone XL Bill Would Open a Long Legal Mire, Experts Say

Court challenges likely if Congress passes legislation to dictate the pipeline’s future.

Rep. Lee Terry
Rep. Lee Terry (R-Neb.). The House Energy and Commerce Committee advanced Terry's bill last week to strip Obama's power for the Keystone XL pipeline and give authority to the FERC. Credit: republicanconference, flickr

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WASHINGTON—Congressional Republicans are floating a handful of measures to override President Obama’s January rejection of a permit for the Keystone XL oil sands pipeline. But it’s questionable whether any of these efforts, including a bill that could be debated in the House this week, would actually speed up approval of the Canada-to-Texas pipeline.

Legal experts agree that the Constitution allows Congress to bypass the president and legislate a permitting process for cross-border pipelines such as TransCanada’s $7 billion project. But they also agree that it’s a tricky endeavor likely to trigger a complex and drawn-out lawsuit.

For starters, a pro-pipeline measure focused solely on Keystone XL has only a tiny chance of passing muster in a Democrat-majority Senate. Plus, President Obama wouldn’t sign such a bill into law.

If the GOP did somehow overcome those barriers, the law would almost certainly be challenged in federal court—probably by environmental organizations and/or landowners along the pipeline route. However, the nature of the lawsuit would depend upon the content of the law that passes.

Nobody can pinpoint exactly what would unfold in the courts because a case like this would set legal precedent. Congress has never before interfered when a president has used an executive order to grant a pipeline permit.

“This is unexplored terrain legally,” Tracy Hester, director of the University of Houston Law School’s Environment, Energy and Natural Resource Center, told InsideClimate News. “As a result it’s going to be very complicated and difficult to figure out where it’s going to go. There’s not a prior court decision with a crystal clear court decision that points the way.”

To match pace with the GOP, the Natural Resources Defense Council and other opponents of the 1,702-mile pipeline are already strategizing about how they would tackle a law that removes the president from the Keystone XL decision-making process.

“We’re keeping all options on the table,” Anthony Swift, an NRDC attorney and oil sands specialist, said in an interview.

“The situation in Congress is so fluid right now, we don’t even know what the vehicle of legislation the Republicans are trying to push is going to look like. And it’s not at all clear they are going to be able to succeed.”

What Gives Congress Power to Act?

GOP leaders have been frustrated since early November when the president announced he was delaying a final decision on a Keystone XL permit until after the 2012 election. He said that timeline would allow an appropriate environmental review of the new Nebraska segment.

In late December, Republicans tried to box in Obama by insisting that he give a thumbs-up or thumbs-down to the pipeline within 60 days. State Department officials coordinating a Keystone XL reroute in Nebraska—a pathway designed to skirt the fragile Sandhills landscape and the irreplaceable Ogallala Aquifer—had emphasized that a February deadline couldn’t be met. Congress slipped the Feb. 21 deadline into legislation extending the payroll tax holiday and other financial boosts for millions of Americans.

The White House spoke up with an early “no” to the pipeline on Jan. 18. Obama was careful to explain that denying the permit was not based on the merits of the project but the arbitrary deadline Congress had imposed. He emphasized that TransCanada is free to reapply, and the Calgary, Alberta-based pipeline operator has indicated it will do so.

Two recent legal analyses by the nonpartisan Congressional Research Service have empowered Republicans in their efforts to become the ultimate decision-makers on a Keystone XL permit.

The first report was issued in December. The second, published just two days after Obama rejected the pipeline, was requested by Sen. John Hoeven. The North Dakota Republican is the author of a bill that would give Congress the ability to approve the Keystone XL. Neither report commented on the viability of specific bills being presented by the House and Senate.

Hester, the University of Houston Law Center professor, said the conclusions reached in both reports are correct. The president and Congress each has power under the Constitution to regulate foreign affairs.

The president’s authority to approve cross-border oil pipelines doesn’t depend on any explicit language in the Constitution, Hester said. Instead, it arises from the constitutional separation of powers in the federal government and from the powers implied by the president’s express constitutional role in foreign affairs. 

He said the Constitution grants Congress explicit authority to regulate commerce with foreign nations.

“Congress is stepping into a muddle where the Constitution has intentionally left powers undefined,” said Hester. “But the critical fact is that the foreign affairs powers of each branch are not exclusive. This sharing has led to long-running competition and jockeying between the president and Congress.”

Congress has never set up a statutory framework to dictate the federal approval process for transborder oil pipelines, Hester said. That’s why President Obama was able to use his authority to make the decision he did about the Keystone XL.

“With congressional attempts to legislate action on the Keystone XL pipeline, the question is not whether Congress can act,” Hester said. “Instead it’s how Congress should act, if it chooses to do so.”

For instance, if Congress passes a law ordering the president to decide that the Keystone XL pipeline is in the national interest, that law would likely trigger a lawsuit challenging its constitutionality. However, requiring the president to make a decision by a certain deadline—as Congress did in December—was legally acceptable because it didn’t dictate what answer the president had to give.

Even if there is a lawsuit, the plaintiffs wouldn’t necessarily be guaranteed a court date, Hester said. One, they’d have to make sure they have a legal leg to stand on and two, they’d have to convince the courts that their arguments are within a judicial comfort zone.

“Traditionally, federal courts have been reluctant to step between Congress and the president in disputes over foreign affairs,” Hester said. “The courts might look at this issue as a political question and say, ‘We don’t want to enter that arena.'”

Bills in the Hopper

Last July, the House approved a bill introduced by Rep. Lee Terry that would have fast-tracked Keystone XL. The Nebraska Republican re-entered the tar sands fray late last year with a different pipeline measure that’s now embedded in the House multi-year transportation bill. That’s the one scheduled for debate this week.

It opens a 30-day window for the quasi-independent Federal Energy Regulatory Commission (FERC)—which currently has no jurisdiction over oil pipelines—to approve the 1,702-mile Keystone XL. FERC itself has pointed out that its expertise and jurisdiction doesn’t cover oil pipeline siting decisions or safety standards.

The Energy and Commerce Committee advanced Terry’s bill on a 33 to 20 vote on Tuesday. Three Democrats voted with the majority. Rep. Charlie Bass of New Hampshire was the only Republican to vote against it. 

While Terry’s measure is shoehorned into the transportation bill, the GOP has also talked about inserting similar measures into other legislation with looming deadlines, such as an extension of the payroll tax holiday.

Others might be presented as freestanding bills. For instance, Hoeven has joined Sens. Richard Lugar of Indiana and David Vitter of Louisiana in circulating one that would circumvent the Obama administration by giving Congress sole power over the pipeline.

Last week, Sen. Orrin Hatch (R-Utah) offered an amendment to the Senate version of the transportation bill that would override the president’s pipeline veto. Hatch withdrew that controversial amendment on Tuesday during a Finance Committee review of the bill. Panel chairman Max Baucus, the Montana Democrat who backs the Keystone XL, told Hatch he didn’t want an infrastructure bill to be clogged up with language green-lighting the pipeline.

Some conservative House Democrats who back the pipeline are asking why Republicans continue interfering with a project that could well be approved next year if TransCanada reapplies successfully for a permit. Forty-seven Democrats sided with the GOP last July on the bill Terry introduced previously to force the White House to speed up pipeline approval.

Terry’s Bill: A Closer Look

The Natural Resources Defense Council and its allies are tracking the trajectory of Terry’s bill.

Swift, the NRDC attorney, pointed out that the bill allows FERC only 30 days to approve a project that is still incomplete—and that the bill doesn’t grant FERC the authority to deny or delay it. If the agency doesn’t act within a month, Congress could approve the Keystone XL.

That short timeframe is an obstacle, Swift said, just as it was with the legislation that forced Obama to make a quick decision on the project. Terry’s bill includes a provision allowing authorities to continue collaborating on an alternate route in Nebraska, but state Department officials estimate that an environmental analysis of the relocation won’t be completed until early 2013.

The GOP is taking on a significant political risk by tucking a pet project into a piece of bipartisan legislation, such as the transportation bill, that the public generally supports, Swift said.

“We’re concentrating on trying to show the American people why giving Congress the power to rubber stamp Keystone XL would be such a bad idea,” he said. “We believe that will resonate with the American public if we can get the message out.”