[Senate Report 113-200]
[From the U.S. Government Publishing Office]
Calendar No. 446
113th Congress Report
SENATE
2d Session 113-200
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KEYSTONE XL PIPELINE
_______
June 26, 2014.--Ordered to be printed
_______
Ms. Landrieu, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 2554]
The Committee on Energy and Natural Resources, having
considered the same, reports favorably an original bill (S.
2554) to approve the Keystone XL Pipeline, and recommends that
the bill do pass.
The text of the bill is as follows:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Keystone XL Pipeline Approval
Act''.
SEC. 2. KEYSTONE XL APPROVAL.
(a) In General.--TransCanada Keystone Pipeline, L.P. may
construct, connect, operate, and maintain the pipeline and
cross-border facilities described in the application filed on
May 4, 2012, by TransCanada Corporation to the Department of
State (including any subsequent revision to the pipeline route
within the State of Nebraska required or authorized by the
State of Nebraska).
(b) Environmental Impact Statement.--The Final Supplemental
Environmental Impact Statement issued by the Secretary of State
in January 2014, regarding the pipeline referred to in
subsection (a), and the environmental analysis, consultation,
and review described in that document (including appendices)
shall be considered to fully satisfy--
(1) all requirements of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.); and
(2) any other provision of law that requires Federal
agency consultation or review (including the
consultation or review required under section 7(a) of
the Endangered Species Act of 1973 (16 U.S.C. 1536(a)))
with respect to the pipeline and facilities referred to
in subsection (a).
(c) Permits.--Any Federal permit or authorization issued
before the date of enactment of this Act for the pipeline and
cross-border facilities referred to in subsection (a) shall
remain in effect.
(d) Judicial Review.--Except for review in the Supreme Court
of the United States, the United States Court of Appeals for
the District of Columbia Circuit shall have original and
exclusive jurisdiction over any civil action for the review of
an order or action of a Federal agency regarding the pipeline
and cross-border facilities described in subsection (a), and
the related facilities in the United States, that are approved
by this Act (including any order granting a permit or right-of-
way, or any other agency action taken to construct or complete
the project pursuant to Federal law).
(e) Private Property Savings Clause.--Nothing in this Act
alters any Federal, State, or local process or condition in
effect on the date of enactment of this Act that is necessary
to secure access from an owner of private property to construct
the pipeline and cross-border facilities described in
subsection (a).
Purpose
The purpose of the measure is to approve the Keystone XL
Pipeline.
Background and Need
Although the Federal Government does not generally regulate
the siting of oil pipelines, the President has, for more than a
century, asserted authority to approve energy and
telecommunication facilities that cross international borders
pursuant to his constitutional authority over foreign affairs.
See Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1163 (D.
Minn. 2010). In 1968, President Johnson delegated his authority
to issue or deny applications for Presidential permits for
cross-border oil pipelines to the Secretary of State, based
upon the Secretary's determination of whether issuance of the
permit would serve the national interest. Executive Order
11423, 33 Fed. Reg. 11741 (Aug. 16, 1968). President George W.
Bush affirmed President Johnson's delegation to the Secretary
of State in 2004. Executive Order 13337, 69 Fed. Reg. 25299
(May 5, 2004).
TransCanada Keystone Pipeline, LP, (``TransCanada''), a
Canadian company, proposes to build and operate an oil
pipeline, known as the ``Keystone XL pipeline,'' to transport
heavy crude oil across the border with Canada to the Gulf Coast
area. In addition, the project will also provide transportation
of light crude oil from the Bakken formation in North Dakota
and Montana. TransCanada already operates another cross-border
pipeline, known simply as the ``Keystone pipeline,'' which runs
from Hardisty, Alberta, crosses the border in North Dakota, and
ends in Patoka, Illinois. It received a Presidential permit in
March 2008 and began operating in June 2010. In the case of the
original Keystone pipeline, the Department of State determined
that the pipeline was in the national interest because it
increased market access to crude oil supplies from ``a stable
and reliable trading partner, Canada, that is in close
proximity to the United States.''
In September 2008, TransCanada applied for a Presidential
permit for the Keystone XL pipeline. This second pipeline will
have the capacity to transport 830,000 barrels of oil per day,
including 730,000 barrels per day from Canada, and 100,000
barrels per day from the Bakken formation of North Dakota and
Montana. It will provide both Canadian and American oil
producers greater access to the large refining markets in the
American Midwest and Gulf Coast. Like the earlier Keystone
pipeline, the Keystone XL pipeline will strengthen North
American energy ties and provide a safe, secure supply of oil
from a reliable stable and reliable trading partner.
The Department of State published a final environmental
impact statement on the proposed project in August 2011. In
November 2011, however, the Department determined that
additional information was needed to act on the application.
In December 2011, Congress passed and the President signed
into law the Temporary Payroll Tax Cut Continuation Act.
Section 501 of that Act required the President, acting through
the Secretary of State, to grant the Presidential permit for
the Keystone XL pipeline ``not later than 60 days'' after
December 23, 2011. Public Law 112-78, 501(a), 125 Stat. 1289.
On January 18, 2012, the Secretary of State recommended that
the President deny the permit, ``based on the fact that the
Department does not have sufficient time to obtain the
information necessary to assess whether the project, in its
current state, is in the national interest.'' The President
accepted the Secretary of State's recommendation, stating that
it was ``not a judgment on the merits of the pipeline, but the
arbitrary nature of a deadline that prevented the State
Department from gathering the information necessary to approve
the project . . . .''
In February 2012, TransCanada announced that it would
proceed with the construction of the pipeline from Cushing,
Oklahoma, to the Gulf Coast, for which a Presidential permit
was not required (since it did not cross the border with
Canada). Construction of that portion of the pipeline is now
complete. It began operating in January 2014.
In May 2012, TransCanada filed a new application for a
Presidential permit for the project. The new application
proposed a modified route, which avoids the environmentally
sensitive Sand Hills region in Nebraska and terminates near
Steele City, Nebraska. From Steele City, oil would be
transported through the so-called ``Cushing Extension,'' from
Steele City, Nebraska, to Cushing, Oklahoma, which began
operating in February 2011, and the ``Gulf Coast Project,''
from Cushing, Oklahoma, to Nederland, Texas, which began
operating in January 2014.
On January 31, 2014, the Department of State released a
final supplemental environmental impact statement on the
modified Keystone XL project. Pursuant to Executive Order
13337, the Department is required to solicit the views of the
Departments of Energy, Defense, Transportation, Homeland
Security, Justice, theInterior, and Commerce, and the
Environmental Protection Agency. On April 18, 2014, the Department of
State notified the eight agencies that it would provide more time for
them to submit their views on the project. It cited both ``the
uncertainty created by the on-going litigation in the Nebraska Supreme
Court which could ultimately affect the pipeline route in that state,''
and the ``unprecedented number of new public comments, approximately
2.5 million, received during the public comment period that closed on
March 7, 2014,'' for giving the agencies more time. The State
Department stated that it was ``actively continuing'' its work on the
permit application, but offered no target date for bringing its review
to a close and making a final decision on TransCanada's permit
application.
Legislation is needed to bring to a close the review of the
permit application, which is now in its fifth year, by
authorizing the construction, connection, operation, and
maintenance of the Keystone XL pipeline and cross-border
facilities.
Legislative History
Similar legislation (S. 582 and S. 2280) was introduced by
Senator Hoeven on March 18, 2013 (S. 582) and on May 5, 2014
(S. 2280). S. 582 is cosponsored by 27 Senators, and S. 2280 is
cosponsored by 55 Senators. Both bills were placed directly on
the Calendar pursuant to rule XIV.
In addition, similar measures have been incorporated as
part of more comprehensive bills that have been referred to the
Committee on Energy and Natural Resources. See S. 17, Sec. 309
(Mr. Vitter); S. 2170, Sec. 2012 (Mr. Cruz). See also S. Con.
Res. 21 (Ms. Landrieu) (expressing the sense of the Senate that
``completion of the Keystone XL pipeline is in the national
interest of the United States'').
Similar legislation (H.R. 3) was also passed by the House
of Representatives on May 22, 2013, by a vote of 241-175, and
was placed on the Senate Legislative Calendar under rule XIV.
The Committee ordered the measure favorably reported as an
original bill on June 18, 2014.
Committee Recommendation and Tabulation of Votes
The Committee on Energy and Natural Resources, in open
business session on June 18, 2014, by a majority voice vote of
a quorum present, recommends that the Senate pass an original
bill, as described herein.
The roll call vote on reporting the measure was 12 yeas, 10
nays, as follows:
YEAS NAYS
Ms. Landrieu Mr. Wyden*
Mr. Manchin Mr. Johnson*
Ms. Murkowski Ms. Cantwell
Mr. Barrasso Mr. Sanders
Mr. Risch Ms. Stabenow
Mr. Lee* Mr. Udall
Mr. Heller* Mr. Franken
Mr. Flake Mr. Schatz*
Mr. Scott Mr. Heinrich
Mr. Alexander* Ms. Baldwin*
Mr. Portman
Mr. Hoeven
*Indicates vote by proxy.
Section-by-Section Analysis
Section 1 provides a short title for the measure.
Section 2(a) authorizes TransCanada to construct, connect,
operate and maintain the Keystone XL pipeline and cross-border
facilities described in the application TransCanada filed on
May 4, 2012, including any subsequent revision to the pipeline
rout within the State of Nebraska required or authorized by the
State of Nebraska.
Subsection (b) provides that the Final Supplemental
Environmental Impact Statement on the Keystone XL Project
issued by the Secretary of State in January 2014 shall be
considered to satisfy the National Environmental Policy Act and
any other provision of law that requires Federal agency
consultation or review, including section 7(a) of the
Endangered Species Act of 1973, with respect to the Keystone XL
pipeline and cross-border facilities.
Subsection (c) provides that any Federal permit or
authorization for the Keystone XL pipeline and cross-border
facilities issued before the date of enactment of the measure
shall remain in effect.
Subsection (d) gives the United States Court of Appeals for
the District of Columbia Circuit original and exclusive
jurisdiction, except for review in the Supreme Court of the
United States, for the review of any order or action of a
Federal agency regarding the Keystone XL pipeline and cross-
border facilities and related facilities in the United States
that are approved by the measure (including any order granting
a permit or right-of-way, or any other agency action taken to
construct or complete the project pursuant to Federal law).
Subsection (e) states that nothing in the measure alters
any Federal, State, or local process or condition in effect on
the date of enactment that is necessary to secure access from
an owner of private property to construct the Keystone XL
pipeline and cross-border facilities.
Cost and Budgetary Considerations
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not received at the
time the report was filed. When the Congressional Budget Office
completes its cost estimate, it will be posted on the Internet
at www.cbo.gov.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out the bill.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 363, as ordered reported.
Congressionally Directed Spending
The bill, as reported, does not contain any congressionally
directed spending items, limited tax benefits, or limited
tariff benefits as defined in rule XLIV of the Standing Rules
of the Senate.
Executive Communications
The Committee did not request the views of the
Administration on the measure.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill as ordered
reported.