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Some lawmakers say jobs are important, not so much for us, but their jobs are so critical that they would do anything to remain in Congress.  Not just taking money from the fossil fuel industry, but also seeking to enact laws that violate existing laws and precedent because they can't get their way without stacking the decks.  When the price is right, like say $21 million, then a foreign corporation can get a permit for a project with devastating impacts, including worsening climate change that affects people globally, creating racist sacrifice zones targeted at Indian and African-American communities, risking water sources, including the Ogallala Aquifer that has a high water table in many locations, negatively impacting the health of adults and children sufficient to cause Senators Boxer and Whitehouse to request a study on public health risks, and risking harm to our wildlife and natural resources.

Sen. Landrieu and Sen. John Hoeven (R-ND) introduced recently bill (Bill S. 2280) that would nix President Obama as decisionmaker; nix National Interest Determination standard, federal agency review and public participation from the cross-border permitting process for TransCanada; approve existing XL pipeline immediately and the future unknown route in Nebraska as special legislation for TransCanada, and nix a full NEPA  (National Environmental Policy Act) analysis. A few Democrats are joining with Republicans against the leader of their party hoping to save their jobs from GOP campaign attacks, but no compromise of principle will appease the GOP.  

Hoeven's rationale for the bill is that "Congress needs to make a decision because the administration has delayed making its decision indefinitely."

In other words, GOP and some Democrats view President Obama's compliance with the law as a potential hindrance to their re-election. The cross-border permitting process is currently at the stage of determining, as required by law, whether the XL pipeline would be in the national interest of the U.S. because it is a pipeline originating in Canada.  Secretary of State Kerry is currently reviewing the millions of public comments submitted in compliance with the law. The federal agency review is currently underway: The law requires that the Department of State consult with the Departments of Defense, Justice, Interior, Commerce, Transportation, Energy, Homeland Security, and the Environmental Protection Agency. However, a lawsuit in Nebraska filed by landowners placed the pipeline in legal limbo because there is no longer an approved route in Nebraska. The Obama administration delayed a decision on whether to approve or reject the XL pipeline because it is not known whether the pipeline route in Nebraska will be at the location evaluated in the NEPA documents or whether there will be a different location for the pipeline as a result of the Nebraska proceedings which could take months to complete.  

Sen. Landrieu does not care about a veto threat of this bill because "we have an obligation to do what we think is right for the country."  Looking at the provisions in her bill, the "right thing" for our country is to enact special legislation for TransCanada that removes any legal obstacles to immediate approval of the XL pipeline, contrary to precedent and Democrat's principles:

This bill would transfer the permit authority from President Obama to the Congress.

The Obama administration is following the legal process used by both parties for decades, a process that was established by both parties in Executive Orders, which are the law for cross-border pipeline permits. Executive cross-border permitting authority has been exercised by the State Department pursuant to Executive Orders, commencing with President Johnson's Executive Order 11423 (1968). President Bush issued an EO in 2004 that "did not substantially alter the exercise of authority or the delegation to the Secretary of State in Executive Order 11423."  That is, President Bush generally expanded on the details of the process and standard established by President Johnson, demonstrating bi-partisan agreement on the process and standards. Now, some Democrats want to join the GOP in spitting in the face of President Obama for following the lawful precedent established over decades.

An attorney with the Environmental Law Institute says that "Congress can override otherwise applicable permitting requirements if it enacts legislation and the legislation is signed by the president."  Thus, "Legislation circumventing the need for presidential approval would, in the end, need the president's approval." This measure is not likely to obtain enough votes to override a veto.

A Congressional Research Service report states that the TransCanada Keystone XL "permit application was subjected to review by the State Department pursuant to executive branch authority over cross-border pipeline facilities as articulated in Executive Order 13337," or Bush's EO.   Regardless of whether the President or Congress have constitutional authority to issue cross-border permits, permits require compliance with a standard, and this bill changes the standard too.

This bill eliminates NID standard, federal agency review, and public participation from the cross-border permitting process and issues Congressional approval for a permit based on NEPA alone as special legislation for TransCanada.

This bill essentially exempts TransCanada from the cross-border permitting process set forth in Executive Orders.

Permits usually are governed by a standard of compliance that must be satisfied by the applicant in order to obtain a permit. The standard in the cross-border permitting process is National Interest Determination and the State Department reviews environmental impacts under NEPA as part of its national interest determination.  The NID evaluation is separate from NEPA review and extends beyond environmental impact to consider other factors, such as "economic, energy security, foreign policy, and other relevant issues."  Before the State Department can approve a border-crossing permit, it must determine that the XL pipeline is in the national interest. The cross-border permit process also includes federal agency review and public participation via comments on NID.

The bill replaces the cross-border permitting process with simply a NEPA standard, and even then, subjects the XL Pipeline to only parts of NEPA.  

Bill S. 2280 states the standard that must be "satisfied" to obtain a permit approval is compliance with NEPA. The bill commences with a section approving the Keystone XL, and the next section explains that this Congressional approval is granted because the Final SEIS (Final Supplemental Environmental Impact Statement) for the XL "shall be considered to fully satisfy… all requirements of the National Environmental Policy Act of 1969."

The bill also states another standard, that the Final SEIS "shall be considered to fully satisfy… "any other provision of law that requires Federal agency consultation or review," including consultation or review required under the Endangered Species Act.

What the bill omits is that another "Federal agency consultation or review" required by law is the federal agency review under the EO cross-border permitting process. President Obama provided an extension of time for this federal agency review due to the Nebraska lawsuit, which is what triggered the GOP and Democrats to introduce this bill.

In any event, it's very handy that the Final SEIS satisfies any other federal agency review or consultation because the EO requirement for federal agency review that President Obama extended, and which triggered this bill, is now "satisfied."

The issuance of this approval based on NEPA alone not only wipes out the NID standard for cross-border permits and federal agency review, but also the public's right to participate in the permitting process because without a National Interest Determination, the public comments submitted as part of the NID process become irrelevant. So, an EO process designed to enable public voices usually drowned out by rich lobbyists is nixed to allow the regular process of money buys our laws.

This bill would approve a permit not just for the existing route but the future, unknown pipeline route in Nebraska.

This bill also approves whatever route is ultimately approved in Nebraska months down the road as this approval extends to: "including any subsequent revision to the pipeline route within the State of Nebraska required or authorized by the State of Nebraska."

Can you see your local governmental agency approving a permit for you to build a home or business without knowing where your home or business will be constructed? This is one reason why President Obama could not lawfully approve or reject XL now because it is unknown where the pipeline will be located in Nebraska.

This bill would grant approval to the unknown Nebraska route without requiring further environmental analysis.

Should a new route ultimately be required for the XL in Nebraska, this bill exempts that new route from any environmental review under NEPA.

Bill S. 2280 states that the approval for the XL includes "any subsequent revision to the pipeline route" in Nebraska while generally NEPA requires a project description, including location, and environmental analysis of that project before the project is approved. The whole point of NEPA is to ensure that the public and agencies, in reaching a decision on a permit or other approval, will have the information about significant environmental effects needed to make the decision, and that agencies do not make decisions based on incomplete information. So, this change tears at the heart of NEPA.

The bill also states that the final SEIS issued by State Department "shall be considered to fully satisfy- (1) all requirements" of the NEPA. This provision is needed to ensure that no further NEPA review can be conducted, which would delay the project.

Under NEPA, the entire project is evaluated for significant environmental impacts. NEPA review is generally done before a project is approved. Under regular legal process, if Nebraska ultimately decides that the XL pipeline should have a different route, then a supplemental EIS would likely be needed for that new route. Sometimes NEPA analysis is done after a project is approved when an environmental issue arises after approval, or a postdecision supplemental environmental impacts statement.  This bill says no need to bother. If there is a new route, no further EIS analysis is needed. The government can just rationalize or justify this approval decision contrary to the purpose and intent of NEPA.

Oh what a difference some fossil fuel money makes in our laws


As Bill McKibben stated:

The endless attempts of bought-off politicians with Big Oil money to ram this thing through America’s Heartland are as disheartening as they are predictable. We will do all we can to meet their money with science and their cynicism with conviction.
David Turnbull of Oil Change International not surprisingly found 'Oil money behind Keystone XL Senate bill breaks 20 million dollars':
But unfortunately, according to our Dirty Energy Money database, that money actually represents the amount the oil industry has given to Senators who cosponsored a bill introduced today by Senators Landrieu (D-LA) and Hoeven (R-ND) pushing for approval of the disastrous Keystone XL pipeline. Cosponsored by the entire Republican Senate caucus and 11 Democratic Senators, it’s the latest in a series of efforts by the oil-soaked Congress to circumvent normal process for considering these pipelines and is expected to be voted on next week.

…On average, each Senator signed on as a cosponsor has received roughly $375,000 from the oil industry. Meanwhile Senators not listed as cosponsors average $78,000 in oil money per Senator.

In other words, those Senators cosponsoring the pro-Keystone XL bill introduced today have received roughly 5 times more in oil industry cash than those who remained off the bill.

You can call Democrat senators who are reported as potential supporters of this bill at US Capitol switchboard and tell them NO on this Keystone XL bill: 202-224-3121.
The obvious targets for additional support include six Democrats who voted in favor of a non-binding proposal 13 months ago that expressed general support for the project: Sens. Michael Bennet of Colorado, Bob Casey of Pennsylvania, Chris Coons of Delaware, Tom Carper of Delaware, Tim Johnson of South Dakota and Bill Nelson of Florida.

Among the group, Casey noted he has twice before voted in favor of the project, and said it was "probably a good guess" to assume he will do so again.

Carper said he is undecided, and intends to meet with Landrieu, Hoeven and others in the coming days.

Johnson, Coons and Nelson indicated Thursday they do not support the legislation to require construction.

Bennet is "still considering" how he will vote.

Let's remember why the XL project is now in legal limbo, which created delay in the decisionmaking process. As Meteor Blades reported, the Nebraska legislature placed pipelines in the jurisdiction of the Public Service Commission. A year later, the legislature "passed another law, the Oil Pipeline Route Certification Act, specifically designed to run a speedy approval process of the Keystone XL followed by a confirming approval by the governor, without the Public Service Commission being involved. That end run is what Judge Stacy shot down" as "unconstitutional and void."  This attempt to rewrite the law to force approval of the XL pipeline through the state process is what placed the XL pipeline in legal limbo because citizens fought back and won the lawsuit.

Now, the GOP and some Democrats want to follow that same path by forcing approval of the XL in Congress.

Meteor Blades posted diary too:  Senators making yet another attempt to greenlight Keystone XL pipeline by going around Obama

Originally posted to Patriot Daily News Clearinghouse on Mon May 05, 2014 at 12:37 PM PDT.

Also republished by Kitchen Table Kibitzing, Climate Change SOS, DK GreenRoots, and Canadian Kossacks.

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