Premium ContentMouse over Home then click on Premium Content for information.WASHINGTON — Republicans on Capitol Hill are looking for the best way to force approval of the Keystone XL pipeline, armed with a new report that says they have the authority to do it.
During a congressional hearing last week, Assistant Secretary of State Kerri-Ann Jones testified that a proposal by Rep. Lee Terry, R-Neb., raises "serious questions about existing legal authorities" and runs up against foreign policy and national security issues that would be best left up to the State Department.
But a Congressional Research Service report suggests that Congress has the power to stick its nose into the pipeline permitting process.
"Legislation related to cross-border facility permitting is unlikely to raise significant constitutional questions, despite the fact that such permits have traditionally been handled by the executive branch alone pursuant to its constitutional 'foreign affairs' authority," according to the report, which was requested by Sen. John Hoeven, R-N.D.
President Barack Obama rejected a permit for the pipeline after Republicans included a Feb. 21 deadline for the decision in the payroll tax cut extension, saying there was not enough time to finish reviewing the project. Republicans, however, say the State Department has all the information it needs.
Rep. Ted Poe, R-Texas, recently introduced the Keystone for a Secure Tomorrow Act, or K-FAST, which would allow Congress to immediately approve the Keystone XL permit on its own.
Terry is pursuing a different approach with his bill, which would shift authority over the permit to the Federal Energy Regulatory Commission and require that agency to approve the pipeline within 30 days.
Terry says it makes sense to involve FERC because it has some pipeline expertise through its regulation of natural gas pipelines.
Although the agency would be forced to approve the Keystone XL under his bill, he said it could still voice objections if there were any problems with the project.
All the pending measures include provisions for altering the pipeline's original route through Nebraska. Under pressure from Nebraska lawmakers, TransCanada agreed to detour the pipeline around the state's environmentally sensitive Sand Hills, although the new route has yet to be determined.
Vermont Law School professor Pat Parenteau specializes in environmental policy and litigation.
Parenteau, who grew up in Omaha and received his law degree from Creighton University, has been following the Keystone XL debate and agrees with the Congressional Research Service report that Congress can exercise authority over the pipeline.
Still, it's not clear exactly how disputes over that authority would play out in court.
"My view is there's concurrent jurisdiction, legally," Parenteau told The World-Herald. "The theoretical question of what would happen in the event of a conflict between Congress saying build it and the president saying don't — I don't know. Nobody knows. There's no Supreme Court precedent on that."
He added, however, that such a case is unlikely ever to reach the Supreme Court because Republicans will have a difficult time getting any Keystone XL measure passed, and the president can always veto it.
Even if the law were enacted, other factors could easily drag things out until after the election, when either the Obama administration or a new president could sign off on the project, he said.
TransCanada must believe the Obama administration will ultimately approve the project or it wouldn't still be spending so much time and money pursuing the project, he said.
The administration has taken pains to say its decision had nothing to do with the merits of the project but rather with the artificial time constraints forced on it by Republicans. The administration has largely avoided making the kinds of arguments favored by pipeline opponents — that the pipeline would create few jobs, that it would contribute to greenhouse gas emissions and pose grave risks to groundwater through catastrophic leaks.
"That's what you would be hearing if you had the political machinery at work trying to set up an opportunity for the president to nix this thing," Parenteau said.
Regardless of Congress' legal authority, the political debate will continue over whether it should act on the pipeline.
Sen. Ben Nelson, D-Neb., has criticized placing congressional mandates on the permit process at this time.
"The State of Nebraska didn't require a deadline," Nelson said. "This is Washington politics at its finest."
Sen. Mike Johanns, R-Neb., had previously called for the Obama administration to deny the Keystone XL permit because the pipeline was slated to go through the Sand Hills. With the detour on its way, Johanns says he's open to any proposals aimed at getting the project moving — so long as Nebraska's process is respected.
"Now that the issues in Nebraska are being worked out, I'm confident that construction could begin on Keystone, and there isn't any reason to delay it," Johanns said.
Contact the writer:
202-630-4823, joe.morton@owh.com
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