Keystone XL: Dead?

Keystone XL Pipeline project is an extension of an already existing transnational pipeline that transports tar sands crude from Alberta in Canada to numerous processing hubs in midwest and gulf coast in the United States. The existing pipeline makes its way to Alberta through Texas, Oklahoma, Steele City, North Dakota, and Regina. The extension aims to provide a shortcut in place of the existing route through South Dacota and Montana to facilitate faster transport of tar sand oil.

The project was proposed in the year 2008. Since its announcement, the project has attracted wide and sustained oppositions from different sections of people including environmental activists, indigenous communities, and farmers, business owners, and ranchers along its proposed route. The reason behind the far-reaching protests is the significant environmental concerns that the project raises.

ENVIRONMENTAL CONCERNS SURROUNDING THE PROJECTS:

1. Climate change

The biggest concern surrounding the Keystone XL project is the extent to which the project will negatively impact climate change. US States department as well as the Environmental Protection Agency has concluded that from the tar sands mine or drilling operation to the automobile gas tank, tar sands greenhouse gas emissions are 81 percent greater than those of conventional oil. This tar sands pipeline alone would increase climate emissions by 24.3 million metric tons of CO2 per year. To worsen the situation, this project is not only pumping more carbon-intensive crudes but is also destroying the Boreal forest carbon sink that stores 22 percent of all carbon on the earth's land surface amounting to 703 gigatons of carbon.

The United States is a signatory to the Paris Agreement that aims to strengthen the global response to the threat of climate change and mandates the parties to take action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases. The proposed pipeline will therefore also undermine the role of the USA as a global leader in the fight against climate change.

2. Groundwater pollution

The Keystone XL pipeline will pass through one of the world’s largest underground sources of water- the Ogallala aquifer. This aquifer provides water for irrigation for most of the central US. There is a huge controversy surrounding whether the pipeline would pose a threat to the aquifer in an event of a leak. This concern becomes even more significant when one considers the fact that this pipeline corrodes faster and the fear is only aggravated by the recent 400,000-gallon oil spill in 2019 that was discovered in the Keystone pipeline system in North Dakota.

3. Loss of wildlife

Another criticism that surrounds the project is the alleged threat to wildlife. The proposed line threatens the existence of at least 12 threatened and endangered species. Amongst the species that are facing threat by the proposed project are the Whooping crane, Piping plover, and American burying beetle. This is caused due to the destruction of habitat, increased exposure to predators, pipeline spills, smashing during construction, power line collisions, and destruction of breeding grounds. Pipeline spills are especially detrimental to the local wildlife and tar spills can reduce the entire population or biological communities of sensitive species. An increased number of power lines also increases the chance of bird collisions. 

These facts do present a worrisome picture for future generations because the future of the planet depends upon the healthy balance between man and nature. After giving careful considerations to these facts the president refused to give state assent for the proposed pipeline in 2015 as the same was found to be in contradiction with the national interest.

The Keystone Xl project being a transnational energy project is regulated by executive order 13337 which amended Executive order 11423. The executive order 11423 provided that for the proper conduct of the foreign relations of the United States, it is required that executive permission be obtained for the construction and maintenance at the borders of the United States of facilities connecting the United States with a foreign country and “oil pipelines” was specifically included on that list of facilities. This function of granting a permit has been delegated to the Secretary of state by executive order 13337 that “requests the view” of others including the Secretary of the Interior and the Administrator of the Environmental Protection Agency. NEPA is conducted usually as a part of the process though it is not mandatory. At the end of the process, the secretary for state ultimately decides if the project serves the national interest and notifies it to the agencies that have been a part of the consultation process. If the agencies agree, then the secretary denies or permits the application, as per the decision. When there is a disagreement between agencies and the secretary of the state, the application is sent to the president for decision who acts as a tie-breaker.

The decision of the Obama administration did not go well with the Canadian corporation. Consequently, the order was challenged by the TransCanada Keystone Pipeline, LP and TC Oil Pipeline Operations Inc. (TransCanada) in 2016 on the ground that the president has exceeded his constitutional powers in denying the permit when EPA gave a green signal to the project. It was alleged by the corporation that the president encroached upon the powers of congress in denying the permit especially when the same ran contrary to express congressional actions. This complaint however was withdrawn in 2017 when then-President Trump granted the presidential permit for the project on the condition that the same can be revoked anytime by the president. The twist in the tale came in 2021 when Joe Biden assumed the position of 46th president of United States and on his first day in the office, he revoked the permit by virtue of section 6 of the executive order dated 20.01.2021, which was granted to the Keystone XL project by Trump. He cited that the project disserves the national interest and is not in harmony with the administration’s economic and climate imperatives. This decision is now challenged in the Southern District of Texas by Attorney Generals of 21 states whereby it is alleged that by virtue of Article I section 8 clause 3 of the constitution, regulation of foreign trade and commerce falls under the exclusive domain of Congress and by denying the permit the president has overstepped his powers. 

Historically, the power of Congress in matters of interstate commerce has received a liberal interpretation. The commerce clause has been interpreted to include an intrastate economic activity that has a “substantial effect” on interstate commerce. For example, in United States v Darby, the court ruled that the power of Congress over interstate commerce is not confined to the regulation of commerce among the states. The Court explained that while manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce. It is clear, therefore, that the commerce clause has received an expansive interpretation. In light of this what remains to be seen is whether the commerce clause will have to nullify the effect on the president’s executive order that derives its legitimacy from Executive Order 13337. The court in Youngstown Sheet & Tube Co. v. Sawyer noted that “the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” In the case of EO 13337, the President acts under both his explicit constitutional powers as well as power authorized by Congress through implication. Executive Order 13337 and Executive Order 11423 cite the general “executive” control of the President and his authority as the “Commander in Chief,” the “foreign relations” power under the constitution to invoke a basis for the presidential permitting process. As far as the congressional assent goes, the legitimacy stems from the fact that in numerous situations, Congress has acknowledged the legitimacy of the presidential permitting process. For instance, in Title V of the Temporary Payroll Tax Cut Continuation Act of 2011, Congress directed the president to grant a presidential permit for the Keystone XL Pipeline unless he determined that it “would not serve the national interest.” In other words, Congress acknowledged the authority of EO 13337 and passed a measure, signed into law that gave deference to the permitting process. 

The facts do provide fair legitimacy to the order of the president however the decision of the court is yet to come. The decision will throw some light on the distribution of power between Congress and the President and set the course for the future of environmental law in the states.