House Tries Again To Force Keystone Pipeline Approval

"The thing that bothers me about this bill is that everything is deemed," said Jerry McNerney, D-Calif. "You just can’t deem the truth."

Rep. Lee Terry
Rep. Lee Terry (R-Neb.), author of the Northern Route Approval Act, which would fast-track approval of the Keystone XL pipeline, bypassing the State Department and the White House. Credit: Mattias Gugel/Medill

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WASHINGTON – A House subcommittee has taken the first step toward legislation that would push through the controversial Keystone XL pipeline, bypassing the State Department and the White House while limiting other regulatory and court reviews.

The subcommittee on energy and power voted 17-9 on Tuesday to approve the Northern Route Approval Act and send it to the full Energy and Commerce Committee. Two Democrats joined 15 Republicans in support of the bill.

The legislation declares that the delivery of oil from Canada’s tar sands to refineries in the United States “is in the national interest because of the need to lessen dependence upon insecure foreign sources.”

It describes the ongoing Federal regulatory process as “an insurmountable obstacle.”

“No Presidential permit shall be required for the pipeline,” the bill flatly decrees.

The bill’s author, Rep. Lee Terry (R-Neb.), said a similar Congressional mandate brought the Alaska Pipeline into being in 1972 after “it just became mired in all of the bureaucracy, and no decisions could be made until Congress finally stepped in.”

“Enough is enough,” Terry said during the debate.

But Rep. Henry Waxman (D-Calif.) said the legislation, the third attempt in two years to grant “special treatment” to the pipeline, “would short circuit the process and dictate the result. It would grant the permit by Congressional fiat.”

Still, there are many signs of bipartisan frustration with the long delay in the pipeline. Several Senate Democrats joined in support of the pipeline a few weeks ago in a non-binding resolution urging the administration to approve it.

One Democrat who voted for the bill, Rep. Gene Green of Texas, said he viewed it as dead on arrival in the Senate but would vote for it anyway as “mainly a messaging bill.” (The other Democrat to vote in favor was John Barrow of Georgia.)

If the Obama administration moves slowly and Congress grows impatient enough, it is possible that Congress could force the issue and the historic presidential decision on Keystone could become moot.

The full Commerce Committee is likely to approve the bill, and House Speaker John Boehner has promised to move it to the full House promptly. While the House may well pass it, it would then have to overcome procedural obstacles such as a filibuster in the Senate and a possible presidential veto in order to become law.

In the meantime, the administration’s review is proceeding.

After the close on April 22 of the public comment period on the latest draft environmental impact statement, the State Department will prepare the final environmental ruling and then begin the 90-day process of deciding whether the pipeline is in the national interest.

That decision, a requirement when pipelines cross international borders, is delegated to Secretary of State John Kerry unless other agencies object to his action; but in reality the question will be decided in the Oval Office.

It is widely seen by Keystone opponents as a test of Obama’s determination to confront climate change. But it is also an issue of pipeline safety.

The long-running public debate on the environmental and safety questions reemerged after an ExxonMobil pipeline ruptured in Arkansas last month, and they arose again in the debate on Tuesday.

The committee should not be expediting Keystone XL “even as ExxonMobile continues to clean up the Pegasus oil spill in Mayflower, Arkansas, which ruptured on March 29,” said Rep.Bobby Rush (D-Ill.). “It is still unclear why the Pegasus leak occurred, but here today my Republican colleagues are trying to force through another major pipeline project even before the American people have the answers for what is the cause of the most recent oil spill.”

The legislation brushes all such concerns aside.

It finds by legislative fiat that the State Department’s environmental review was adequate, limiting any legal challenges. It holds that by rerouting a section of the pipeline in Nebraska and setting other conditions, concerns about a possible spill are nullified.

Permits to protect the water and migratory birds are “deemed” by the legislation to have been issued, cutting off regulatory reviews.

Even the American burrowing beetle, a protected species whose habitat could be disrupted by construction, is declared by law to be out of jeopardy.

“The thing that bothers me about this bill is that everything is deemed,” said Jerry McNerney (D-Calif.). “You just can’t deem the truth.”

At a hearing on the bill last week, Republicans said the administration has been dragging its feet, despite constant pressure from Congress.

In 2011, Congress set a deadline for the president to act, leading him to deny the project and forcing the pipeline builder, TransCanada, to divide the Alberta-to-Texas project. The southern leg of the pipeline, which doesn’t cross an international border and therefore didn’t require a presidential approval, is now under construction. Obama is expected to make his decision on the northern leg this summer.

“Here we are, April 2013, still mired in the process,” said Terry, the bill’s author. “My bill would put an end to that.”

Rep. John Dingell (D-Mich.) warned at the hearing that the bill “would circumvent the established process and open the project to a plethora of lawsuits.”

But the bill limits lawsuits in important ways, hamstringing environmentalists who would likely fight the pipeline in court.

Those challenges would have to go through the U.S. Court of Appeal for the District of Columbia Circuit, not always the most environmentally friendly venue, and would be limited in scope by the law and heard on an expedited basis.

On a party-line vote, the committee rejected a Democratic amendment that would have eliminated the restrictions on lawsuits.

Several proponents of the bill said it would lead to lower gasoline prices for Americans, although studies have suggested that this will not happen, as the pipeline will in fact help drain a glut of oil that has held prices down. Many of the refined products are expected to be exported to world markets where prices are relatively high.

It is not clear whether a bill like this could get to the Senate floor, find the 60 votes needed to cut off debate there, or attract the two-thirds majority in each chamber needed to override a presidential veto.