The Washington PostDemocracy Dies in Darkness

Why you should be skeptical of Congress’s Keystone XL bill even if you favor the pipeline

Sen. Mary Landrieu, D-La., chair of the Senate Energy Committee, with Sen. Joe Manchin, D-W. Va., a member of the committee, speak to reporters about the new urgency to get congressional approval for the Canada-to-Texas Keystone XL pipeline, at the Capitol in Washington, Wednesday, Nov. 12, 2014.  (AP Photo/J. Scott Applewhite)

Last Friday, the House of Representatives voted 252 to 161 in favor of legislation to approve the controversial Keystone XL pipeline. Today, meanwhile, the Senate is expected to follow suit and vote on a similar bill -- a move widely seen as a spillover from the still pending Louisiana Senate race. Sen. Mary Landrieu, who is high at risk of losing in a runoff against her challenger Rep. Bill Cassidy, is a major Keystone supporter and is behind the Senate legislation. (Cassidy introduced the House version).

While some may be offended by Congress acting to advance one politician's electoral chances, there may be an even deeper reason to be alarmed by this particular bill -- irrespective of its timing or sponsorship.

According to University of Toledo College of Law professor Evan C. Zoldan, the Keystone bill is a piece of "special legislation" -- meaning, a bill written to specifically affect the fate of a particular individual, a small group of individuals, or a company, whose name (or names) is often directly mentioned in the legal text itself. In this, Zoldan argues, the bill is similar to a controversial 2005 law passed by Congress “for the relief of the parents of Theresa Marie Schiavo,” a Florida woman who had spent 15 years in a persistent vegetative state, and whose case became a matter of national attention after her husband and her parents split over whether or not she should be kept alive on a feeding tube.

The Schiavo bill gave Schiavo's parents a special ability to bring a lawsuit in federal court to prevent any withdrawal of food or treatment for her (a law that in effect “wiped away ” a long legal history in state courts, as Zoldan puts it). But it then went on to add that this was a one-time thing. "Nothing in this Act shall constitute a precedent with respect to future legislation," noted the Schiavo bill.

And just as that bill did not apply to any other person in a persistent vegetative state, so the Keystone XL bill will not let any other pipelines that cross international borders bypass the State Department's permitting process.

"In one case, Congress is taking the job of the executive, and in the other Congress is taking the job of the judiciary -- but in either case there is the same problem," says Zoldan of the Keystone and Schiavo cases, "which is the encroachment by one branch of government into the function of one of the other branches." This, says Zoldan, represents a violation of the separation of powers.

Zoldan has written a lengthy paper (available here) explaining everything that's wrong with special, as opposed to general, legislation. In most cases, he notes, special legislation isn't nearly so high profile. The most common instances are probably in the immigration arena, where individuals or small groups of individuals are granted permanent resident status by legislative fiat, without having to go through the usual immigration process. "There have been thousands of private immigration bills enacted," writes Zoldan.

The Keystone XL bill has nothing to do with immigration -- and yet, there's a similarity in the way that it goes around a process typically handled by the executive branch. Indeed, the bill passed by the House does not merely take the process of deciding on the pipeline's approval out of the hands of the State Department. It also states that the State Department’s final supplemental environmental impact statement on Keystone “shall be considered to fully satisfy” the National Environmental Policy Act (NEPA) and “any other provision of law that requires Federal agency consultation or review.”

"What this bill will do, if it ends up being enacted," says Zoldan, "is take the fact-finding process…away from an executive agency, and say that it’s automatically deemed to be in compliance with the law." This may be one reason why a spokesman for Democratic Sen. Chris Coons of Delaware recently said the senator would opposes the bill because "it’s not Congress’s job to issue construction permits."

Zoldan thinks that if the bill were indeed to become law (somehow surviving President Obama's presumed veto), environmentalists might have a good case for a lawsuit over it. More generally, he explains, Congress ought to pass laws that have a general nature, and then let the executive and the judiciary apply those laws to specific situations, individuals, or companies.

Another way of putting it? Congress really ought to have more respect for the categorical imperative: "Act only according to that maxim by which you can at the same time will that it should become a universal law." Or, when making laws, make sure they apply to everyone -- or every company.