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A photo of protestor's signs in front of the Capitol building.

Ranchers, farmers, and indigenous leaders protest the Keystone XL pipeline in Washington, D.C., on April 22. A group of senators is trying to push forward congressional approval despite delays at the executive level.

PHOTOGRAPH BY GARY CAMERON, REUTERS

Christina Nunez

National Geographic

Published May 6, 2014

Can a group of U.S. senators really bypass the Obama administration and force approval of the controversial and long-delayed Keystone XL pipeline?

"The review process has been thorough," said Senator Mary Landrieu (D-La.), who introduced a bill to approve the pipeline with Senator John Hoeven (R-ND) last week. "The five studies that have been conducted, as required by law, are complete. It is time to stop studying and start building."

The pipeline, which would carry crude oil from Canada to refineries on the U.S. Gulf Coast, has been under review for more than five years.

In April, the State Department extended the review process indefinitely, citing pending litigation in Nebraska and the need to study the "unprecedented" number of public comments it had received. (Related: "State Department Further Postpones Keystone XL Decision.")

"The legislation Senator Hoeven and I have introduced will green-light the construction of the pipeline immediately," Landrieu said in a statement.

The idea of pushing past the White House to expedite Keystone XL is certainly appealing to proponents of the pipeline. But after years of controversy, is it just more political posturing or could it really work?

The answer seems to be that there's a reasonable legal case for overriding the president on the issue, but the necessary votes probably aren't there.

Measuring Impacts

The history of the project is politically fraught.

The State Department, charged with reviewing Keystone XL because it crosses international boundaries, rejected the project in 2011, in part because of concerns over its route through Nebraska's Sandhills region, a native grasslands that contains one of the largest aquifers in North America. (Related: "Interactive: Mapping the Flow of Tar Sands Oil.")

TransCanada, the pipeline's Calgary-based operator, revised the Nebraska route and resubmitted the application for the presidential permit two years ago. (Related: "Keystone XL Pipeline: 4 Animals and 3 Habitats in Its Path.")

Keystone pipeline marker in Texas
PHOTOGRAPH BY MAX FAULKNER, FORT WORTH STAR-TELEGRAM/MCT VIA GETTY
A marker sits along the path of the Keystone XL pipeline in Texas. Construction on the southern leg of the pipeline is complete, but the northern end that crosses the U.S.-Canada border awaits approval.

The new route addressed some of the environmental concerns about Keystone, but not about the pipeline's broader impact on emissions and climate change. President Obama has said that he would approve the pipeline only if it "does not significantly exacerbate the problem of carbon pollution." (Related: "3 Factors Shape Obama Decision on Keystone Pipeline.")

In January this year, the State Department's final environmental impact statement seemed to address that concern, saying the pipeline was "unlikely to significantly impact the rate of extraction in the oil sands or the continued demand for heavy crude oil at refineries in the United States."

That is because oil transport by rail has surged, filling the gap in pipeline capacity—and raising safety and environmental questions similar to those surrounding the pipeline. (Related: "Oil Train Derails in Lynchburg, Virginia" and "North Dakota Oil Train Fire Spotlights Risk of Transporting Crude.")

The Legal Debate

Senator Hoeven has been trying unsuccessfully for the past two years to move Keystone XL forward with congressional action. He points to research he requested in 2012 that says the commerce clause of the Constitution gives Congress the authority to approve such projects.

The report from the Congressional Research Service said that legislation to approve the Keystone project "appears likely to be a legitimate exercise of Congress's constitutional authority to regulate foreign commerce."

The same report also noted that the executive branch's ability to act on cross-border project permits was covered under its own constitutional power to conduct foreign affairs. And there isn't much precedent for congressional challenges to executive authority in this area, the report said.

Still, if Keystone proponents in Congress could muster the political force to pass legislation, it seems they would be on firm legal ground.

"Although I hope that Congress doesn't intervene, I think it's pretty clear that they have the power to do that, since the Constitution explicitly gives them the power to 'regulate commerce with foreign nations,'" Daniel A. Farber, a law professor and co-director of the Center for Law, Energy, and the Environment at the University of California, Berkeley, said via e-mail.

There could still be a court challenge, of course. "There's no way of knowing, but just about anything the government does these days prompts a lawsuit, so I wouldn't be surprised," said Farber.

The Political Debate

Landrieu and Hoeven represent states that stand to benefit economically from the TransCanada pipeline: Louisiana's refineries are hungry for discounted Canadian heavy crude to replace declining production from Mexico and South America; North Dakota is seeking outlets for its own ever-increasing production of oil from the Bakken shale. (A little more than 10 percent of the pipeline's 830,000 barrels per day capacity would be set aside for Bakken crude.)

Hoeven suggests that the State Department has already done the work necessary to determine whether Keystone XL should go forward. "The Keystone XL pipeline project has been under review for more than five years, with four favorable environmental reports completed to date," he said in a statement. (Related: "Oil Spill Spotlights Keystone XL Issue: Is Canadian Crude Worse?")

David Goldston, director of government affairs for the Natural Resources Defense Council, disagrees. He warns against the idea of legislators taking on work that, in his view, should be done by the federal agencies that are accustomed to evaluating such projects.

"I doubt that most folks on [on Capitol Hill] have read through [the State Department analysis] in its entirety," Goldston says. "Agencies are still in the process of weighing in on it ... Congress acting as a permitting agency doesn't seem like a very wise policy approach."

"A Real Challenge"

The push to hold a vote on Keystone XL comes as the Senate weighs a different bipartisan energy bill on Tuesday: the long-delayed Shaheen-Portman measure on energy efficiency. That legislation would strengthen efficiency standards for federal, commercial, and residential buildings and boost investment in energy-saving technologies, among other things.

Keystone proponents may use the Shaheen-Portman bill as leverage to get progress on their issue. Senate Majority Leader Harry Reid has said he is "open to anything" that will move Shaheen-Portman forward, but has not yet signaled whether he will allow a binding vote on Keystone.

Last year, the Senate passed a nonbinding resolution in favor of building Keystone XL with 62 votes.

But even if the Senate passed a binding bill, then won easy approval in the House and was able to send legislation to President Obama, it would need 67 votes to override a presidential veto. Hoeven said last week on C-SPAN that getting even 60 votes would be "a real challenge."

The American Council for an Energy-Efficient Economy, which has been pushing the Shaheen-Portman bill, wrote in a blog post Monday that amid the battles over Keystone, health care, natural gas exports, and other issues, "It's easy to forget that there is an energy-efficiency bill in there that does not get much press attention ... Why? Because nobody is fighting over it!"

This story is part of a special series that explores energy issues. For more, visit The Great Energy Challenge.

14 comments
Anita Patel
Anita Patel

Why send the toxic diluted bitumen to refineries on the US Gulf Coast? Move the refineries to Alberta! Keep all the filth in one place where people apparently like it.


If this sensible step had been taken rather than dallying around waiting for approval to build a pipeline the refinery would already be on-line and the pipeline could carry refined petroleum.

JOE PROPHET
JOE PROPHET

Carbon emissions, greenhouse gases, defining climate change as man caused is a hoax. The people propagating this are deceived by this notion and they are deceiving the public at large. About the middle of the 1980's I had a vision that said this. "We are coming into a time of illumination, and you ARE GOING TO see whole civilizations walking around naked. It's meant to pass genetic strengths down upon the whole human race." We are meant to absorb this energy while it lasts. Plants and animals are also going to be absorbing this energy. This vision has also returned to me on a recurring basis over the years until this present day to continue to reinforce this impression upon my mindset that I may with authority communicate this to the world. Laugh fools. But this is what you're going to see.

JOE PROPHET
JOE PROPHET

Carbon emissions, greenhouse gases, defining climate change as man caused is a hoax.

The people propagating this are deceived by this notion and they are deceiving the public 

at large. About the middle of the 1980's I had a vision that said this. "We are coming into a

time of illumination, and you ARE GOING TO see whole civilizations walking around naked. It's meant to pass genetic strengths down upon the whole human race." We are meant to absorb this energy while it lasts. Plants and animals are also going to be absorbing this energy. This vision has also returned to me on a recurring basis over the years until this present day to continue to reinforce this impression upon my mindset that I may with authority communicate this to the world. Laugh fools. But this is what your going to see.

john bond
john bond

ship the oil via a pipe that will leak (eventually)....or send it in outdated rail containers (older ones split on low impacts) or trucks with baffels (that help keep the motion of the oil...semi in check...with drivers who could fall asleep...other drivers with road rage....inclememnt weather....and many many more variables)....in other words damned if we do....and screwed if we dont.

atleast in with the pipeline...we know were the oil could leak....(not guess what r&r crossing ...or town or city will have the joys of a crude oil fire.

no easy answer.....its a nine fingered leper proctologist visit without a kiss and no foreplay.

John C.
John C.

So green nuts would rather have the oil shipped by more environmentally dangerous rail and tanker truck. What nincompoops. 

Donn Clark
Donn Clark

Why risk our environment to fill the coffers of a few greedy pigs for dirty oil that will merely pass through our lands without adding any benefit of significance to us? Remember, stupid is as stupid does -- stupid and corrupt senators aside, it is a winning proposition for a few investors, and a loosing one for American, with a risk that will only increase as the pipeline ages..

Stan Lipka
Stan Lipka

The Keystone XL does not facilitate significant jobs.  The pipeline does not contribute to energy independence.  The increased oil commodity negatively impacts greenhouse gas emissions, and generates profit for oil exporters and investors.  The dangers of pollution and contamination are just slicks on the surface.

Special interests are funding lawmakers and threatening negative repercussions to opposition, it is vital to humanity and our environment that each of us support those who oppose this and likeminded projects.

Energy is important.  We face many challenges, but we can do better than bad.

Keystone XL is bad.

KENNETH LANE
KENNETH LANE

Sure it can -- we have seen this Rightwing Government force Christianity as the US religion of only choice, our Supreme Court overthrew our government in 2000 and installed King Bush, so of course they can do as they wish.  The Rightwing owns all major news outlets so they can and do as they damn well please.  

US elections are rigged by Rightwing stooges so voting in America is totally meaningless.  Time for a good old fashioned Revolt and drag out the guillotine please!

Tim Mulderig
Tim Mulderig

@Anita Patel 

You do realize that to refine in colder climates cause more energy to be used and that the resulting liquids need to be transported south to the markets for sale.

Penny Melko
Penny Melko

@JOE PROPHET I didn't find your name on the list of client scientist in Wikipedia. What have you published that qualifies you as an expert on climate science - are you a phd or physicist? Where did you go to school? Stanford Penn State, MIT?

Tim Mulderig
Tim Mulderig

@Donn Clark  I guess you have not had time to think it out. How many people in the world are SAVED by plastic medical supplies. How much food is provided and shipped. How much clean water is made by the very energy you want to stop

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