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The GOP could accidentally delay the Keystone XL Pipeline

at 11:51 AM ET, 12/19/2011

For Republicans, the best-case scenario is that they get the Keystone XL Pipeline approved as part of the payroll-tax deal. But if they can’t quite manage that, one option is to force an expedited review of the project. A reader who specializes in environmental compliance, however, says that that could have the perverse effect of delaying the pipeline for many, many years:

I work every day on complying with the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA) for transportation projects. The idea that this rider would expedite construction of the pipeline is laughable. Best case scenario: it delays the pipeline another 3 to 4 years. It would be better to leave the State Department alone.
The reason is this: there is legal precedent for Congress to force construction (not approval) of a project. It happened some years ago with a causeway in the Everglades. However, the legislation in that case said the the Army Corps of Engineers should construct the project without regard to any other federal law. That wording was very important in the eventual court decision, as the judge ruled that that excluded consideration of NEPA. From everything I’ve read, the House bill doesn’t have language like that but seeks to force a decision.
So, we end up with two scenarios. The State Department may just say, “Fine, none of the benefits outweigh the environmental impact, and the No Build is our preferred alternative.” Effectively, that means they deny approval of the project, more or less just to spit in Republicans’ collective eyes. Or, say the State Department does approve the project, and chooses one of the build alternatives as the preferred alternative. They immediately get sued by environmental groups. The case goes to court, and takes most of the next year (at least) to get resolved. It likely gets appealed at least once, taking another 6 months or more. The State Department loses (it could easily be argued that they didn’t take the requisite ‘hard look’ at the impacts if they choose a new alternative avoiding the Sand Hills, or that they didn’t examine a ‘reasonable range of alternatives’ if they choose an existing alternative, particularly since the Administration said that they needed more time to study more alternatives).
State then has to redo the entire Environmental Impact Statement (EIS). As you may know, an EIS generally takes between 2 and 5 years to complete, although they could probably shorten the time a bit because they’ve already done a lot of the work for the current EIS. However, they’d have to rehold every public meeting, consult again with every federal and state agency involved in the pipeline, and examine new alternatives to comply with the court order.
In summary, the House Republicans attempt to expedite the Keystone XL pipeline could result in its being delayed years beyond when the Obama Administration would approve it if left to their own devices.
 
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