Keystone XL Primer: Explaining the National Interest Process

Six years, two environmental reviews, one presidential delay, two Nebraska trials and innumerable rallies, commercials and op-eds later, the decision to grant a federal permit to the Keystone XL pipeline has now entered its home stretch, as the Obama administration moves to determine if the project is in the national interest.

The Congressional push to land a bill mandating approval for the Keystone XL has attracted most of the media attention, as has the president’s vow to veto it. But parallel to the Congressional Keystone campaign, the State Department has quietly revived the national interest determination process after the Nebraska State Supreme Court tossed a challenge to the pipeline’s route through the state. The administration had suspended the national interest determination process last spring while the case was pending.

The State Department asked eight federal agencies to weigh in on the national interest determination before Secretary of State John Kerry and, ultimately, the president determine the pipeline’s fate. They are: the Environmental Protection Agency, the Pentagon and the Departments of Energy, Justice, Interior, Commerce, Transportation and Homeland Security. Their comments are due Monday, February 2.

What is the definition of “national interest?”

There are no publicly available definitions of the national interest. For a step so critical to the project’s outcome, the determination of national interest is profoundly opaque.

Are there criteria that the State Department provides to guide the determination effort?

There is no public information about the guidelines the agencies will use to assess if the Keystone XL is in the country’s national interest. But the president’s statements over the last year indicate that the Keystone XL’s effect on climate change would be the major factor in his decision, and could therefore be a focus for agencies participating in the determination, said Doug Hayes, an attorney with the Sierra Club who has followed the national interest determination process for other pipeline projects.

The president has also touched on other issues that might serve as a rough map for participating agencies, Hayes said. “Is it a job creator? Will it provide energy security or is it about Canada shipping their oil through the U.S. and then to export markets. All of these things have shed a little light on what the State department process will be about,” he said.

Do the agencies have to weigh in on the national interest determination?

Participation is not mandatory. The departments of Interior, Energy and Commerce have yet to decide if they will submit any assessments, although the deadline is three days away. The Environmental Protection Agency is likely to participate.  

“We are determining whether any additional information related to pipeline safety, outside of the 59 special conditions we previously provided for the Final Supplemental Environmental Impact Statement, is necessary at this time,” said a spokesman for the Transportation Department.

The EPA and Interior publicly released their assessments of the Keystone XL’s environmental impact statements. Will the eight agencies be able to disclose what they ultimately decide about the national interest?

Historically, the State Department has not released comments agencies have made as part of the national interest determination process in order to foster candor, said a State Department official. “Due to its deliberative nature, information shared during this process is not publicly available,” the official said.

Agencies are allowed, however, to release on their own the assessments they give the State Department. The chances of disclosure are greater if an agency has a position that is diametrically opposed to the one that the State Department adopts, in which case the president plays tie-breaker and makes the final decision. But in the case of the Keystone, Obama has already said that he will make the final choice given the controversy surrounding the project.

Do past comments by agencies like the EPA and Interior give any clues about what they will look at as part of the national interest determination?

They could, said environmental lawyers familiar with the past national interest determination efforts.

The EPA, for instance, sharply criticized previous environmental impact statements for Keystone XL, including a 2013 draft version of the current, final one. In an April 2013 letter to top State Department officials, the EPA detailed objections regarding greenhouse gas emissions related to the project, pipeline safety and alternative routes. The EPA plans to comment on the final environmental impact study that came out in January 2014, but it has yet to decide when it would make public its appraisal of the study, a spokeswoman said

CHART: EPA’s Recommendations to the State Department on Keystone XL pipeline

In its assessment of the draft, the Interior Department warned that Keystone XL could have long-term, damaging effects on wildlife near its route, including: “species displacement, increased predation rates and predator travel lanes, increased nest parasitism, vehicle collisions with wildlife…invasive plant species, increased wildfire risk, lower wildlife density, increase in collisions with power lines and electrocutions on power poles…and increase in poaching.”

The upside to the national interest determination’s lack of precise boundaries may be the chance for a more wide-ranging discussion of the project’s risks and benefits, said Anthony Swift, a lawyer with the Natural Resources Defense Council. “The national interest determination discussion will not just be about its environmental impacts but the broader question of how it fits in with U.S. climate policy,” Swift said. “The groups of officials engaged within the discussion have likely broadened and in the State Department, there is likely a broader group of people discussing the project now, too.”

Why is the process so vague? The environmental reviews provided lots of detailed analyses in well-defined areas.

The difference may stem from the fact that the environmental review is mandated by a law, the National Environmental Policy Act, or NEPA, which has been in place since 1970. Under NEPA, the State Department’s environmental assessment had to answer a multitude of specific questions.  By contrast, the national interest determination was established in a few lines of a 2004 executive order, without any further description of guidelines agencies should use.

When will the State Department actually say if Keystone XL is in the national interest?

There is no deadline for Secretary of State Kerry to make a determination of national interest once his agency sends him its recommendation. Then it goes to President Obama.