The President, a Pipeline, and a Tainted Environmental Impact Statement

In 2008, TransCanada, a Canadian fossil-fuel-based energy provider,[1] sought permission from the U.S. Department of State to build and operate a 1,700 mile crude oil pipeline stretching from Alberta, Canada, to Oklahoma and Texas.[2]  This pipeline, the Keystone XL Project (“the Project”), will transport an estimated 830,000 barrels of crude oil per day when completed.[3]  The Project could potentially lead to anywhere between 250,000–554,000 permanent jobs[4] and will help secure the energy security of the United States.[5]

The Project, however, has raised environmental concerns amongst environmental groups and the states along the Project’s proposed route.[6]  Addressing these concerns, before the State Department can approve the Project,[7] the National Environmental Policy Act (“NEPA”) requires the State Department to first prepare an assessment of the Project’s environmental impact.[8]

Although the State Department issued its Final Environmental Impact Statement (“EIS”) for the Project on August 26, 2011,[9] the State Department does not appear to have met its obligations under the NEPA.  At the urging of TransCanada, the State department hired Cardno Entrix, an environmental contractor, to prepare the EIS for the Project.[10]  Although federal regulations permit a federal agency to employ a contractor for this purpose, the same regulations require the contractor to disclose that it has “no financial or other interest in the outcome of the project.”[11]  Cardno Entrix, however, has worked on projects with TransCanada and is described by the later as a “major client.”[12]  Exacerbating the apparent conflict of interest between the two companies, Cardno Entrix found that there “would be no significant impacts to most resources along the proposed Project corridor . . . .”[13]  Despite facing intense criticism since issuing the EIS,[14] the State Department is expected to either approve or reject the Project by the end of the year.[15]

President Obama, who must ultimately approve the State Department’s decision whether or not to approve the Project, has stated that he will weigh both economic and public health factors when assessing the State Department’s decision.[16]  President Obama, however, should take more firm, targeted stance.  In light of the growing alarm over the Project’s environmental impact,[17] the President should reject the State Department’s Final EIS as noncompliant with the NEPA.  In passing the NEPA, it was Congress’ purpose that “the Federal Government . . . use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”[18]  The State Department, by relying on a potentially tainted environmental assessment, risks exposing United States citizens to the very dangers Congress sought to avoid when passing the NEPA.  To remedy this, the President should require the State Department to conduct another EIS, either on its own or with the aid of a disinterested third-party contractor.

It is, of course, entirely possible, perhaps likely, that a new EIS of the Project would come to a substantially similar conclusion as that prepared by Cardno Entrix.  But it will serve as a sign to Americans that those entrusted with carrying out the laws are doing so with due regard to the underlying interests those laws are designed to protect.

– Joseph Haupt, Article Editor 


[1] About Us, TransCanada, http://www.transcanada.com/aboutus.html (last visited Nov. 5, 2011).

[2] Project Background, Keystone XL Pipeline Project, U.S. Dep’t of State, http://www.keystonepipeline-xl.state.gov/clientsite/keystonexl.nsf?Open (last visited Nov. 5, 2011).

[3] Id.

[4] See The Perryman Grp., The Impact of Developing the Keystone XL Pipeline Project on Business Activity in the US: An Analysis Including State-by-State Construction Effects and an Assessment of the Potential Benefits of a More Stable Source of Domestic Supply 6 (2010), available at http://www.transcanada.com/docs/Key_Projects/TransCanada_US_Report_06-10-10.pdf.

[5] See id. at 3.

[6] See Monica Davey, Nebraska Seeks a Say on the Route of a Pipeline, N.Y. Times, Oct. 30, 2011, http://www.nytimes.com/2011/10/31/business/energy-environment/nebraska-legislature-to-debate-keystone-xl-oil-pipeline.html?_r=1&scp=2&sq=keystone%20xl&st=cse; see also Leslie Kaufman, March Against Pipeline Planned, N.Y. Times, Nov. 4, 2011, http://www.nytimes.com/2011/11/05/science/earth/march-against-pipeline-planned.html?ref=keystonepipeline (citing environmental concerns over greenhouse gas emissions and the potential contamination of the Ogallala Aquifer).

[7] Exec. Order No. 13,337, 69 Fed. Reg. 25299 (Apr. 30, 2004).

[8] See 42 U.S.C. § 4332(C).

[9] U.S. Dep’t of State, Final Environmental Impact Statement for the Keystone XL Project (2011), available at http://www.keystonepipeline-xl.state.gov/clientsite/keystonexl.nsf/01_KXL_FEIS_Inside_Title_Page.pdf?OpenFileResource [hereinafter “EIS”].

[10] Elisabeth Rosenthal & Dan Frosch, Pipeline Review is Faced with Question of Conflict, N.Y. Times, Oct. 7, 2011, http://www.nytimes.com/2011/10/08/science/earth/08pipeline.html?_r=1&ref=keystonepipeline.

[11] 40 C.F.R. § 1505.5(c) (2011)

[12] Rosenthal & Frosch, supra note 10.

[13] EIS, supra note 9, at 3.15-1.

[14] See Dan Frosch, 36 Lawmakers Berate State Dept. on Pipeline, Green (Oct. 18, 2011, 5:57 PM), http://green.blogs.nytimes.com/2011/10/18/36-lawmakers-berate-state-dept-on-pipeline/?ref=keystonepipeline.

[15] See Rosenthal & Frosch, supra note 10.

[16] Jeff Mason & Matt Spetalnick, Obama: Keystone XL Pipeline Decision Will Be Made with Health, Economic Factors Taken into Account, Huffington Post, Nov. 1, 2011, http://www.huffingtonpost.com/2011/11/01/obama-keystone-health-economic-factors_n_1070655.html.

[17] See, e.g., Davey, supra note 6.

[18] 42 U.S.C. § 4331(a).

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