On Wednesday, May 22, 2013 the House will consider H.R. 3, the Northern Route Approval Act, under a rule. H.R. 3 was introduced on March 15, 2013 by Rep. Lee Terry (R-NE), Chairman of the Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade, and has bipartisan 134 cosponsors. H.R. 3 was referred to the Committees on Energy and Commerce, Natural Resources, and Transportation and Infrastructure, and was marked up by each respective committee.
H.R. 3 approves construction of the Keystone XL pipeline by removing the requirement for a Presidential Permit, granting the additional Federal permits required for the project, and limiting the legal challenges that can be brought regarding the pipeline’s construction.
H.R. 3 deems the final environmental impact statement (EIS) issued by the Secretary of State on August 26, 2011 and the Final Evaluation Report issued by the state of Nebraska as sufficient to satisfy all the requirements of the National Environmental Policy Act of 1969 (NEPA) and the National Historic Preservation Act. H.R. 3 also approves the additional federal permits required pursuant to the Clean Water Act, the Rivers and Harbors Act, and the Migratory Bird Act, and addresses the challenges under the Endangered Species Act with respect to the American burying beetle. H.R. 3 gives the U.S. Court of Appeals for the District of Columbia Circuit exclusive jurisdiction over the specifically listed legal challenges to the Keystone XL pipeline and provides for expedited consideration of the claims allowed under the bill.
In September of 2008, Canadian pipeline company TransCanada filed an application with the U.S. Department of State to construct the Keystone XL pipeline across the United States-Canada border. As originally proposed, the 1700-mile pipeline was intended to transport oil from the oil sands region of Alberta, Canada to Midwest and Gulf Coast refineries. Although Federal agencies generally have no authority to site oil pipelines, a Presidential Permit is required for pipelines connecting the United States with a foreign country. Executive Order 13337 delegates to the Secretary of State the President’s authority to make decisions regarding Presidential Permit applications.
The issuance of a Presidential Permit is dependent 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 United States, and the impact the project would have on broader foreign policy objectives. In addition to soliciting feedback from the public, the State Department is required to consult with relevant state and federal agencies in making its national interest determination.
In addition, NEPA generally requires federal agencies to conduct an EIS to analyze the environmental impacts of major federal actions that will significantly affect the environment. 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. Construction of the pipeline was the “agency preferred alternative” among the options studied, including 14 major route alternatives and the option not to move forward with the project. The EIS also noted the establishment of 57 project-specific safety standards for the pipeline, in addition to those required by law.
Despite these findings, President Obama announced in November of 2011 that a decision on Keystone XL would not be issued until 2013. 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. In January of 2012, President Obama denied the Presidential Permit request, requiring TransCanada to begin its application process anew.
TransCanada reapplied with the State Department in May of 2012, triggering a new national interest determination and NEPA review process. 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 United States that did not require a Presidential Permit. The new application also contained a reroute of the pipeline, avoiding environmentally sensitive areas in Nebraska. Despite the Administration’s lengthy review of the full Keystone XL pipeline and its ultimate rejection of the project, President Obama in March of 2012 endorsed the southern leg of the pipeline, saying the Administration would “cut through the red tape” to make the project a priority.
Nebraska Governor Dave Heineman approved the proposed reroute of the pipeline through the state in January of 2013. In addition, the State Department issued a Supplemental Environmental Impact Statement in March of 2013, finding once again that the pipeline would have limited adverse environmental impact. Neither the State Department nor the President has issued a decision on whether to grant the President Permit for the Keystone XL pipeline.
 Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Jan. 24, 2013 at 6.
 Id. at 7.
 U.S. Department of State, Final Environmental Impact Statement for the Proposed Keystone XL Project, Executive Summary, Aug. 26, 2011 at ES-14 (available at http://keystonepipeline-xl.state.gov/documents/organization/181185.pdf).
 Id. at ES-6.
 Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Jan. 24, 2013 at 4.
 See Remarks by the President on American-Made Energy, Mar. 22, 2012 at http://www.whitehouse.gov/the-press-office/2012/03/22/remarks-president-american-made-energy.
According to CBO estimates, enacting H.R. 3 will have no significant impact on the federal budget. The bill would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply.
Rep. Weber (R-TX) Amendment #1 – Amendment adds to the findings in Section 2 highlighting the State Department’s scientific and environmental findings, which conclude that the Keystone XL pipeline is a safe and environmentally sound project.
Rep. Waxman (D-CA) Amendment #19 – Amendment adds a finding that “the reliance on oil sands crudes for transportation fuels would likely result in an increase in incremental greenhouse gas emissions” in the United States, resulting in additional greenhouse gas emissions equal to 4.3 million passenger vehicles. Also provides that the bill will not go into effect unless the President finds that TransCanada or tar sands producers will fully offset the additional greenhouse gas emissions.
Rep. Hank Johnson (D-GA) Amendment #20 – Amendment requires a study on the health impacts of increased air pollution in communities surrounding the refineries that will transport diluted bitumen through the proposed Keystone XL pipeline.
Rep. Connolly (D-VA) Amendment #22 – Amendment requires a threat assessment of pipeline vulnerabilities to terrorist attack and corrective actions necessary to protect the pipeline from such an attack and to mitigate any resulting spill.
Reps. Rahall (D-WV) and Defazio (D-OR) Amendment #16 – Amendment strikes section 3 of the bill (Keystone XL Permit Approval). Section 3 eliminates the requirement for a Presidential Permit to construct the Keystone XL pipeline across an international border. Section 3 further deems the new application for the Keystone XL pipeline approved, based on a final environmental impact statement issued by the U.S. Department of State for a different pipeline route.
Rep. Esty (D-CT) Amendment #12 – Amendment strikes language of the bill that allows TransCanada to obtain certain permits for operation and/or maintenance of the pipeline, but continues to allow construction permits to be expedited.
Rep. Jackson Lee (D-TX) Amendment #6 – Amendment lengthens the time period for filing a claim under the Act from 60 days to 1 year.
Reps. Chu (D-CA), Polis (D-CO) and Connolly (D-VA) Amendment #23 – Amendment requires the GAO to conduct a study and prepare a report of the Keystone XL pipeline to determine the total projected costs of pipeline spill cleanup, including the potential impacts of a petroleum spill on public health and the environment and the quantity and quality of water available for agricultural and municipal purposes.
Rep. Cohen (D-TN) Amendment #10 – Amendment requires TransCanada to submit its oil spill response plan, and any updates to the plan, to the Governors of each State in which the Keystone XL pipeline operates. TransCanada is required to develop such a plan under current law and regulations; only certain Federal agencies receive and review the plan.
Rep. Holt (D-NJ) Amendment #2 – Amendment increases American energy independence by requiring that all oil and refined fuels transported through the Keystone XL Pipeline be used here in the United States and not exported, unless the President finds that an exception is required by law or in the national interest.
More than 1,700 days have passed since TransCanada filed its first application in 2008 to construct the Keystone XL pipeline. For more information, see the Keystone XL timeline provided by the House Energy and Commerce Committee.