Kemp: Keystone Shows Environmental Review Process Is Broken


“Because this act of Congress conflicts with established executive branch procedures and cuts short thorough consideration of issues that could bear on our national interest – including our security, safety and environment – it has earned my veto.”

With those words, the president returned the Keystone pipeline authorization act (S.1) to the Senate unsigned, and challenged lawmakers to find the two-thirds majorities in both houses needed to enact the law without his approval, something that remains unlikely.

But by citing established procedures and the need not to short cut a thorough examination of the issues, after more than six years of environmental reviews, the president’s staff demonstrated they have absolutely no sense of irony and a deeply cynical approach to governing.

The president’s advisers insist the administration has not yet taken a decision on the merits of the pipeline and is still waiting for the State Department to finish its long-delayed review.

The president’s spokesman has insisted it is still “certainly possible” that he could authorise the pipeline in the normal way if he concludes that is in the national interest.

The administration insists its objections are procedural and centre on the attempt to take a decision that is notionally about foreign relations, a traditional area of executive branch prerogative, out of the president’s hands.

But the fiction that the administration is keeping an open mind about the project while insisting the normal process is observed is becoming impossible to sustain.

The president himself has made a series of increasingly critical comments in recent months about the pipeline which strongly suggest he has made up his mind to reject it.


Keystone has become a totemic issue for both environmental campaigners and the oil industry, which has been used to mobilised passions out of all proportion to the significance of a single pipeline.

But it is also a symbol of a broken decision-making process that should be overhauled to ensure the United States can meet the urgent energy and environmental challenges of the 21st century.

TransCanada submitted an application for a presidential permit to build the pipeline in September 2008 and 2,350 days later the administration is still unable to provide a timetable for making a final decision.

The exhaustive review process has generated literally thousands of pages of analysis – covering everything from its impact on groundwater (40 pages), vegetation (50) threatened and endangered species (130) and socioeconomics (110) to take just a few examples.

Keystone has kept dozens of lawyers, lobbyists, economists, bureaucrats and specialists in environmental impact statements in highly-paid full-time employment for years.

And still the administration says it needs more time to study the issues and reach a decision on whether the pipeline is in the national interest.

Protecting the environment and taking action on climate change are important. Major infrastructure projects deserve thorough review. But taking decisions in a timely manner is also important. And in this case, the administration has failed.

In one sense, Keystone is unusual: most applications to build pipelines and power lines across the U.S.-Canadian border have been approved swiftly.

But in another it is emblematic: the preparation of environmental impact statements and authorisations for major energy infrastructure projects has become a source of lengthy delays.

Delay has become the favourite weapon to kill projects to which environmental groups object, as Michael Graetz of Columbia Law School has explained (“The End of Energy” 2011).

“Litigation to enforce new legislative requirements, especially for environmental impact statements, (has) made placing new sources of energy in service much more difficult and expensive,” Graetz wrote.

“Environmental activists had mastered techniques that at a minimum served to delay energy projects and make them more costly, but that in many instances also succeeded in killing projects altogether.”


The biggest victim of the delay-and-kill strategy has been nuclear power, which some prominent climate campaigners now warn is essential to stemming catastrophic climate change.

But the same strategy is now being used to delay and block Keystone as part of a broader effort to halt the exploitation of Canada’s oil sands.

The National Environmental Policy Act (NEPA) of 1969 had strong bipartisan support and was passed by a Democrat-controlled Congress and signed into law by Republican President Richard Nixon.

NEPA was approved by the House of Representatives by a lopsided majority of 372-15 and unanimously by the U.S. Senate.

“Restoring nature to its natural state is a cause beyond party and beyond factions. It has become a common cause of all the people of this country,” Nixon told Congress in his annual address in 1970.

But NEPA was never intended to become a source of endless decision-making delays or a full employment act for lawyers, lobbyists and environmental specialists.

The distortion and manipulation of the NEPA process has brought the entire system into increasing disrepute and made it an issue of contention between the parties.

For the White House, liberal Democrats and environmental groups the issue is not Keystone but the broader fight against climate change.

For most Republicans, Democrats from energy producing states, and large parts of the petroleum industry and the wider business community, however, the issue is becoming whether the NEPA process is broken.

As the Keystone process slouches onwards, it is hard not to conclude something has gone terribly wrong with the decision-making process in this case and for energy projects more generally.

With its constant promises, a decision can be expected soon, followed by more excuses for delay, statements that the administration is keeping an open mind, followed by critical statements about the project, the decision-making process has appeared neither transparent nor honest.

If the president wanted to make a symbolic gesture on climate change, and please his supporters in the environmental movement, by refusing the pipeline, he should have done so years ago and made his objections plain.

Instead, his administration has cynically spun out the process to avoid taking a controversial decision and diminished the credibility of the entire presidential permitting and NEPA process.






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