H.R. 3, Keystone XL Pipeline Act

H.R. 3

Keystone XL Pipeline Act

Date
January 9, 2015 (114th Congress, 2nd Session)

Staff Contact
David Smentek

Floor Situation

On Friday, January 9, 2015, the House will consider H.R. 3, the Keystone XL Pipeline Act, under a closed rule.  H.R. 3 was introduced by Rep. Kevin Cramer (R-ND) on January 6, 2015, and referred to the House Energy and Commerce, Transportation and Infrastructure, and Natural Resources Committees.

Bill Summary

H.R. 3 is substantively identical to H.R. 5682, a bill to approve the Keystone XL Pipeline, legislation that passed on November 14, 2014 by a vote of 252-161 (See Roll Call #519).

H.R. 3 authorizes the construction, connection, operation, and maintenance of the Keystone XL pipeline.  The bill deems the Final Supplemental Environmental Impact Statement issued by the Secretary of State in January of 2014 sufficient to satisfy all the requirements of the National Environmental Policy Act of 1969 (NEPA) and any other federal law that requires federal agency consultation or review.

H.R. 3 retains in effect any federal permit or authorization that is issued for the Keystone XL pipeline before the bill’s enactment.  H.R. 3 provides that except for review in the Supreme Court, the United States Court of Appeals for the District of Columbia shall have original and exclusive jurisdiction over any legal challenge regarding the pipeline or cross border facilities.

Background

In September of 2008—more than six years ago—Canadian pipeline company TransCanada filed an application with the Department of State to construct the Keystone XL pipeline across the U.S.-Canada border.[1]  The pipeline was intended to transport oil from the oil sands region of Alberta, Canada to Midwest and Gulf Coast refineries.[2]  Though states, not federal agencies, generally have authority to site oil pipelines, a Presidential Permit is required for pipelines that connect the U.S. with a foreign country.[3]  The Secretary of State is authorized to make decisions regarding Presidential Permit applications on the President’s behalf.[4]

A Presidential Permit is issued only upon a determination that the proposed project would serve the “national interest,” taking into account a number of factors including the environmental impact of the project, the economic benefits the project would bring to the U.S., and the impact the project would have on broader foreign policy objectives.[5]  In addition to soliciting feedback from the public, the State Department is required to consult with relevant state and federal agencies in making the “national interest” determination.[6]

In addition, NEPA generally requires federal agencies to conduct an Environmental Impact Statement (EIS) to analyze the environmental impacts of any major federal action that will significantly affect the environment.[7]  The State Department was required to conduct this analysis for Keystone XL, and completed the lengthy environmental review in August of 2011, issuing a final EIS that found that the pipeline would have limited adverse environmental impacts during construction and operation.[8]

Despite these findings, President Obama announced in November of 2011 that a decision on Keystone XL would not be issued until 2013.[9]  In response, legislation was enacted requiring the issuance of a permit for the project within 60 days, unless the President determined that the project was not in the national interest.[10]  In January of 2012, President Obama denied the Presidential Permit request, requiring TransCanada to begin its application process anew.[11]  The report cited a lack of sufficient time to obtain necessary information, and concerns regarding the proposed route passing through the Sand Hills Area of Nebraska.[12]

TransCanada reapplied with the State Department in May of 2012, triggering a new national interest determination and NEPA review process.[13]  The new application was for 875 miles of pipeline, as TransCanada in the meantime had begun construction on a portion of the originally proposed pipeline solely within the U.S. that did not require a Presidential Permit.[14]  The new application also contained a reroute of the pipeline, avoiding environmentally sensitive areas in Nebraska.

Nebraska Governor Dave Heineman approved the proposed reroute of the pipeline through the state in January of 2013.[15]  In addition, the State Department issued a Final Supplemental Environmental Impact Statement in January of 2014, confirming once again that the pipeline would have limited adverse environmental impact.[16]  Despite these actions, the Administration has refused to issue a decision on whether to grant the President Permit for the Keystone XL pipeline, citing pending state litigation involving the State of Nebraska and landholders over the project.

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[1] Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Dec. 2, 2013 at 1.
[2] Id.
[3] Id. at 5.
[4] Id. at 6.
[5] Id.
[6] Id. at 7.
[7] Id.
[8] Id. at 8.  Construction of the pipeline was actually the “agency preferred alternative” among the options studied, including 14 major route alternatives and the option not to move forward with the project.  U.S. Department of State, Final Environmental Impact Statement for the Proposed Keystone XL Project, Executive Summary, Aug. 26, 2011 at ES-14.  The EIS also noted the 57 project-specific safety standards that had been established for the pipeline, in addition to those actually required by law.  Id. at ES-6.
[9] House Energy and Commerce Committee: Keystone XL: #TimeToBuild.
[10] Id. See Temporary Payroll Tax Cut Continuation Act of 2011 (P.L. No. 112-78). Dec. 23, 2011.
[11] House Energy and Commerce Committee: Keystone XL: #TimeToBuild;
[12] http://www.state.gov/r/pa/prs/ps/2012/01/181473.htm
[13] Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Dec. 2, 2013 at Summary.
[14] Id.
[15] House Energy and Commerce Committee: Keystone XL: #TimeToBuild.
[16] Id.

Cost

A CBO cost estimate is not available at this time.

Additional Information

STATEMENT OF ADMINISTRATION POLICY
H.R. 3 – Keystone XL Pipeline Act
Rep. Cramer (R-ND)

The Administration strongly opposes H.R. 3, which would immediately authorize the construction, connection, operation, and maintenance of the Keystone XL pipeline and related cross-border facilities and declare that the Secretary of State’s January 2014 Final Supplemental Environmental Impact Statement satisfies the National Environmental Policy Act and any other provisions of law requiring Federal consultation or review with respect to the Keystone XL pipeline or its related facilities.

H.R. 3 seeks to circumvent longstanding and proven processes for determining whether cross-border pipelines serve the national interest by authorizing the Keystone XL pipeline project prior to the completion of the Presidential Permitting process.  In doing so, it would cut short consideration of important issues relevant to the national interest.  The bill also would authorize the project despite uncertainty due to ongoing litigation in Nebraska.

Because H.R. 3 conflicts with longstanding Executive branch procedures regarding the authority of the President and prevents the thorough consideration of complex issues that could bear on U.S. national interests (including serious security, safety, environmental, and other ramifications), if presented to the President, his senior advisors would recommend that he veto this bill.

Additional Views

For questions or further information contact the GOP Conference at 5-5107.