S. 1, Keystone XL Pipeline Approval Act

S. 1

Keystone XL Pipeline Approval Act

Sponsor
Sen. John Hoeven

Date
February 11, 2015 (114th Congress, 1st Session)

Staff Contact
Communications

Floor Situation

On Wednesday, February 11, 2015, the House will consider S. 1, the Keystone XL Pipeline Approval Act, under a rule.  S. 1 was introduced on January 6, 2015 by Sen. John Hoeven (R-ND).  The bill passed in the Senate by a vote of 62-36. (See Record Vote Number 49)

Bill Summary

S. 1 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. S. 1 retains in effect any federal permit or authorization that is issued for the Keystone XL pipeline before the bill’s enactment.  The bill 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.

The text of S. 1 also includes a number of amendments adopted in the Senate.  They are outlined below:

Private Property Protections: This amendment requires that land for the pipeline and cross-border facilities may only be acquired consistent with the Constitution.  The amendment passed in the Senate by a vote of 64-33.  (See Record Vote Number 21)

Energy Retrofitting Assistance for Schools: This amendment requires the Secretary of Energy (acting through the Office of Energy Efficiency and Renewable Energy) to coordinate and disseminate information on existing federal programs and assistance that may be used to help initiate, develop, and finance energy efficiency, renewable energy, and energy retrofitting projects for schools.  In carrying this out, the Secretary is required to: 1) carry out a review of existing programs and financing mechanisms available in other agencies that could be used for energy efficiency, renewable energy, and energy retrofitting projects; 2) establish a federal cross-departmental collaborative coordination, education, and outreach effort to streamline communication and promote available opportunities and assistance; 3) provide technical assistance for states, local educational agencies, and schools to develop and finance these projects; 4) develop and maintain a single online resource website with contact information for relevant technical assistance and support staff; and 5) establish a process for recognizing schools who implement these projects and are willing to serve as a resource for agencies and schools who wish to initiated similar efforts.  Finally, this amendment requires the Secretary to submit a report, within 180 days of the bill’s enactment, describing the implementation of this process.  The amendment passed in the Senate by voice vote.[1]

Consultation with Indian Tribes: This amendment states that the United States must uphold certain consultation requirements with Indian nations, as required under executive order 13175.  The amendment passed in the Senate by voice vote.[2]

Sense of Congress Regarding Climate Change:  This amendment expresses the sense of Congress that “climate change is real and not a hoax.”  The amendment passed in the Senate by a vote of 98-1.  (See Record Vote Number 29)

Sense of Congress Regarding the Oil Spill Liability Trust Fund: This amendment establishes the sense of Congress that all forms of unrefined and unprocessed petroleum should be subject to the nominal per-barrel excise tax associated with the Oil Spill Liability Trust Fund.  The amendment passed in the Senate by a vote of 75-23.  (See Record Vote Number 18)

Energy Efficiency Improvement Act of 2015: This amendment includes a number of provisions related to energy efficiency.  The amendment passed in the Senate by a vote of 94-5.  (See Record Vote Number 6)

Title I – Better Buildings Act of 2015:

Title I “establishes a voluntary, market-driven approach to aligning the interests of commercial building owners and their tenants to reduce energy consumption.”[3]  Title I requires the Secretary of Energy to complete a study on the feasibility of: 1) significantly improving energy efficiency in commercial buildings through the design and construction of separate spaces with high-performance energy efficiency measures, and 2) encouraging owners and tenants to implement such measures in separate spaces.  The Secretary is required to publish this study on the DOE’s website.

Moreover, Title I establishes the Tenant Star program, a voluntary certification program within Energy Star, which would promote energy efficiency in separate spaces.[4]  The program would recognize tenants in commercial buildings that voluntarily achieve high levels of energy efficiency.  Furthermore, the bill requires the DOE Administrator of the Energy Information Administration (EIA) to collect data on: 1) categories of building occupancy that are known to consume significant quantities of energy; and 2) other aspects of the property, building operation, or building occupancy determined by the EIA Administrator.  The data collected is to be made available to the public in aggregated form.

Title II – Grid-Enabled Water Heaters

Title II exempts from regulation certain thermal storage water heaters under new DOE efficiency standards that go into effect in April 2015.  Title II permits large, grid-enabled electric-resistance water heaters can continue to be manufactured only if they include capabilities that allow them to be used in electric thermal storage or demand response programs.  These water heaters are intended only for use as part of an electric thermal storage or demand response program.  Title II also requires manufacturers and utilities to report to DOE the quantity of grid-enabled water heaters that are shipped and activated each year for electric thermal storage or demand response programs. In 2017 and 2019, the Secretary of Energy is required to publish an analysis of the data collected to assess the extent to which shipped products are put into use in demand response and thermal storage programs.

Title III – Energy Information for Commercial Buildings

“Title III requires that federally-leased buildings without Energy Star labels benchmark and disclose their energy usage data, where practical.”[5]  Under current law, federally-owned buildings are subject to benchmarking requirements.  Title III requires the DOE, within 2 years of the bill’s enactment, to complete a study on: 1) the impact of state and local performance benchmarking and disclosure policies; 2) programs and systems in which utilities provide aggregated information regarding whole building energy consumption and usage information to owners of multitenant commercial, residential, and mixed-use buildings; and 3) best practice policy approaches relating to state and local performance benchmarking that have resulted in the greatest improvements in energy efficiency.  Finally, within 18 months of the bill’s enactment, the DOE is required to develop and maintain a database for the purpose of storing and making available public energy-related information on commercial and multifamily buildings.

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[1] http://www.gpo.gov/fdsys/pkg/CREC-2015-01-27/pdf/CREC-2015-01-27-pt1-PgS503-2.pdf#page=11, S513-S514.
[2] http://www.gpo.gov/fdsys/pkg/CREC-2015-01-27/pdf/CREC-2015-01-27-pt1-PgS503-2.pdf#page=34, S 536.
[3] http://www.portman.senate.gov/public/index.cfm/press-releases?ID=8d166ff7-f7e5-4e2c-940c-cc2acb2e448d
[4] The term ‘separate spaces’ means areas within a commercial building that are leased or otherwise occupied by a tenant or other occupant for a period of time pursuant to the terms of a written agreement.  See S. 1, Division B, Title I, Section 103(a)(2).
[5] http://www.portman.senate.gov/public/index.cfm/press-releases?ID=8d166ff7-f7e5-4e2c-940c-cc2acb2e448d

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.[6]  The pipeline was intended to transport oil from the oil sands region of Alberta, Canada to Midwest and Gulf Coast refineries.[7]  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.[8]  The Secretary of State is authorized to make decisions regarding Presidential Permit applications on the President’s behalf.[9]

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.[10]  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.[11]

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.[12]  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.[13]

Despite these findings, President Obama announced in November of 2011 that a decision on Keystone XL would not be issued until 2013.[14]  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.[15]  In January of 2012, President Obama denied the Presidential Permit request, requiring TransCanada to begin its application process anew.[16]  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.[17]

TransCanada reapplied with the State Department in May of 2012, triggering a new national interest determination and NEPA review process.[18]  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.[19]  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.[20]  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.[21]  On January 9, 2015, the Nebraska Supreme Court overturned a lower court ruling that sided with landowners challenging Keystone XL’s route through Nebraska.[22]  The ruling had declared that a 2012 law allowing Gov. Heineman to greenlight the route was unconstitutional.[23]  Despite these actions, the President issued a veto threat of H.R. 3.

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[6] Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Dec. 2, 2013 at 1.
[7] Id.
[8] Id. at 5.
[9] Id. at 6.
[10] Id.
[11] Id. at 7.
[12] Id.
[13] 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.[14] House Energy and Commerce Committee: Keystone XL: #TimeToBuild.
[15] Id. See Temporary Payroll Tax Cut Continuation Act of 2011 (P.L. No. 112-78). Dec. 23, 2011.
[16] House Energy and Commerce Committee: Keystone XL: #TimeToBuild;
[17] http://www.state.gov/r/pa/prs/ps/2012/01/181473.htm
[18] Keystone XL Pipeline Project: Key Issues, Congressional Research Service, Dec. 2, 2013 at Summary.
[19] Id.
[20] House Energy and Commerce Committee: Keystone XL: #TimeToBuild.
[21] Id.
[22] http://thehill.com/policy/energy-environment/229004-nebraska-high-court-backs-state-approval-of-keystone-route
[23] See Id.

Cost

A CBO cost estimate is not available at this time.

Additional Information

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