WASHINGTON—Any day now, the EPA will be weighing in with an analysis of the State Department's final environmental evaluation of the controversial oil sands Keystone XL pipeline.
Environmental Protection Agency Administrator Lisa Jackson said Friday that authorities from her agency's Office of Enforcement and Compliance Assurance will be responding to the document, which was released Aug. 26, within "the next week or so."
Jackson's agency—which could force President Obama to decide the fate of the pipeline even if Secretary of State Hillary Clinton initially OKs it—has been less than complimentary of the State Department's previous two environmental assessments of the fiercely debated $7 billion proposed project.
If EPA officials are as critical of the department's final environmental evaluation, pipeline opponents are hopeful their concerns will prompt Jackson to challenge the potential approval of Keystone XL later this year. Federal law requires that the president be the final decision-maker if the EPA or any of the other seven "cooperating agencies" involved in the pipeline review object to the State Department's conclusion.
William Daley, the president's chief of staff, recently told leaders of environmental organizations that the White House would not participate in the final ruling unless one of those agencies takes exception to the State Department's final determination, according to media reports.
Calgary-based TransCanada's proposed pipeline would pump diluted bitumen, a particularly dirty type of heavy crude, 1,702 miles from mines in Alberta to Gulf Coast refineries.
"We will be commenting," Jackson told an audience gathered near Capitol Hill at the Newseum. The event, an energy breakfast organized by PoliticoPro, featured an hour-long question-and-answer session with the EPA administrator.
When a reporter pressed Jackson on what her decision about the pipeline would be, she smiled and quipped, "I've got 99 problems ... but that ain't one."
How Tough Will EPA Be This Time?
Pipeline opponents, many already convinced that the State Department eventually will approve Keystone XL, are counting on EPA authorities to be as tough on the final environmental review as they were on the first two.
The EPA gave the State Department its lowest grade of "inadequate" back in July 2010 after Clinton's team issued its first draft of the environmental review on Keystone XL. That harsh dressing-down forced the State Department to collect more data before completing a revamped draft in mid-April.
Even though EPA bumped up its grade on the department's second attempt from "inadequate" to "insufficient information" in June, the agency noted that it has "identified significant environmental impacts that must be avoided ... to provide adequate protection to the environment."
Agency officials criticized the department's second effort for falling short on addressing safety and oil spill risks along a less-than-satisfactory route, missing the mark on calculating lifecycle greenhouse gas emissions, and failing to consider the potential damage to wetlands and migratory birds and the dangers to at-risk communities.
If completed, the 36-inch diameter pipeline would be capable of delivering up to 830,000 barrels of heavy crude daily.
The State Department's final environmental assessment of Keystone XL concluded what the agency had confirmed in its previous two versions: that constructing and operating the pipeline would have "limited adverse environmental impacts" and "there would be no significant impacts to most resources along the proposed project corridor."
In the U.S. Interest? 9 Agencies Get a Say
Release of the final environmental assessment of the pipeline triggered the late August start of a separate 90-day review led by the State Department. Now federal authorities are in the midst of deciding whether the pipeline is in the "national interest." This examination extends beyond the pipeline's environmental repercussions to take into account economic, political, energy security and foreign policy considerations.
Citizens had the opportunity to voice their concerns on these topics during a series of hearings the State Department organized in the half dozen states affected by the Keystone XL. Public meetings in Montana, South Dakota, Nebraska, Kansas, Oklahoma and Texas concluded with an Oct. 7 gathering in downtown Washington, D.C.
In addition, an executive order explaining the national interest determination—signed by President George W. Bush in 2004—requires the State Department to garner input from the EPA administrator, the attorney general, as well as the secretaries of Defense, Interior, Commerce, Transportation, Energy and Homeland Security before reaching a final decision about a pipeline such as Keystone XL.
The catch is that federal law dictates that the final ruling on the pipeline is elevated to the president if any of those eight federal agencies chooses to challenge whatever the State Department's final decision is. Once State Department officials issue a "thumbs up" or "thumbs down," agency heads have 15 days to explain why they disagree with the call.
While State Department officials have repeatedly said that a decision about the Keystone XL will be announced before year's end, some observers are now wondering if the contentiousness of the issue means it will drag into next year. TransCanada initially submitted its application in September 2008.
Concerns Grow Over Conflict of Interest
Conservationists, farmers, ranchers, some labor unions, climate change activists and other anti-pipeline forces have consistently questioned the merit of the State Department's environmental assessments. Those reviews are under even more of the activists' microscope now that is has been revealed that the department hired the professional environmental consulting company, Cardno Entrix—which counts TransCanada as a major client—to conduct them.
TransCanada paid for the environmental assessment that Cardno Entrix did under the auspices of the State Department.
Three senators, Bernie Sanders (I-Vt.), Patrick Leahy (D-Vt.) and Ron Wyden (D-Ore.), wrote a letter to Clinton last Friday raising what they called "serious concerns" about the matter.
"We find it inappropriate that a contractor with financial ties to TransCanada, which publicly promotes itself by identifying TransCanada as a 'major client,' was selected to conduct what is intended to be an objective government review," the senators wrote. "At a time when all credible scientific evidence and opinion indicate that we are losing the battle against global warming, it is imperative that we have objective environmental assessments of major carbon-dependent energy projects."
Activists are hoping to recruit at least 5,000 pipeline opponents to the nation's capital Nov. 6 to encircle the White House. Their goal is to organize the "largest protest ever staged against the tar sands" and "stand with one voice" demanding that President Obama say no to the pipeline, according to the Sierra Club.
More than 1,200 pipeline protesters were arrested during a two-week sit-in at the White House in late August and early September.
Back in June, in its analysis of the second draft environmental review, Cynthia Giles, EPA assistant administrator for enforcement and compliance assurance, noted in firm yet polite language that the EPA would be tracking the State Department's progress to be sure it directly addresses her agency's concerns in its final environmental evaluation.
"We look forward to continuing to work with you to strengthen the environmental analysis of this project and to provide any assistance you may need to prepare the Final EIS," Giles wrote. "In addition, we will be carefully reviewing the Final EIS to determine if it fully reflects our agreements and that measures to mitigate adverse environmental impacts are fully evaluated."